[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2006 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
29
Parts 100 to 499
Revised as of July 1, 2006
Labor
________________________
Containing a codification of documents of general
applicability and future effect
As of July 1, 2006
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 29:
Subtitle B--Regulations Relating to Labor
Chapter I--National Labor Relations Board 5
Chapter II--Office of Labor-Management Standards,
Department of Labor 119
Chapter III--National Railroad Adjustment Board 125
Chapter IV--Office of Labor-Management Standards,
Department of Labor 129
Finding Aids:
Table of CFR Titles and Chapters........................ 231
Alphabetical List of Agencies Appearing in the CFR...... 249
List of CFR Sections Affected........................... 259
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 29 CFR 100.101
refers to title 29, part
100, section 101.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
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A subject index to the Code of Federal Regulations is contained in a
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the revision dates of the 50 CFR titles.
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[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2006.
[[Page ix]]
THIS TITLE
Title 29--Labor is composed of nine volumes. The parts in these
volumes are arranged in the following order: parts 0-99, parts 100-499,
parts 500-899, parts 900-1899, parts 1900-1910, part 1910.1000-End,
parts 1911-1925, part 1926, and part 1927 to end. The contents of these
volumes represent all current regulations codified under this title as
of July 1, 2006.
Subject indexes appear following the occupational safety and health
standards (part 1910), and following the safety and health regulations
for: Longshoring (part 1918), Gear Certification (part 1919), and
Construction (part 1926).
For this volume, Robert J. Sheehan was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page 1]]
TITLE 29--LABOR
(This book contains parts 100 to 499)
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Part
SUBTITLE B--Regulations Relating to Labor
chapter i--National Labor Relations Board................... 100
chapter ii--Office of Labor-Management Standards, Department
of Labor.................................................. 215
chapter iii--National Railroad Adjustment Board............. 301
chapter iv--Office of Labor-Management Standards, Department
of Labor.................................................. 401
[[Page 3]]
Subtitle B--Regulations Relating to Labor
[[Page 5]]
CHAPTER I--NATIONAL LABOR RELATIONS BOARD
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Part Page
100 Administrative regulations.................. 7
101 Statements of procedures.................... 15
102 Rules and regulations, Series 8............. 33
103 Other rules................................. 116
[[Page 7]]
PART 100_ADMINISTRATIVE REGULATIONS--Table of Contents
Subpart A_Employee Responsibilities and Conduct
Sec.
100.101 Cross--reference to financial disclosure requirements and other
conduct rules.
Subpart B_Cooperation in Audits and Investigations
100.201 Audits and investigations.
Subpart C--Employee Personal Property Loss Claims [Reserved]
Subpart D_Claims Under the Federal Tort Claims Act
100.401 Claims under the Federal Tort Claims Act for loss of or damage
to property or for personal injury or death.
Subpart E_Enforcement of Nondiscrimination on the Basis of Handicap in
Programs or Activities Conducted by the National Labor Relations Board
100.501 Purpose.
100.502 Application.
100.503 Definitions.
100.504-100.509 [Reserved]
100.510 Self-evaluation.
100.511 Notice.
100.512-100.529 [Reserved]
100.530 General prohibitions against discrimination.
100.531-100.539 [Reserved]
100.540 Employment.
100.541-100.548 [Reserved]
100.549 Program accessibility: Discrimination prohibited.
100.550 Program accessibility: Existing facilities.
100.551 Program accessibility: New construction and alterations.
100.552-100.559 [Reserved]
100.560 Communications.
100.561-100.569 [Reserved]
100.570 Compliance procedures.
100.571-100.599 [Reserved]
Authority: Sec. 6, National Labor Relations Act, as amended (29
U.S.C. 141, 156).
Subpart A is also issued under 5 U.S.C. 7301.
Subpart B is also issued under the Inspector General Act of 1978, as
amended by the Inspector General Act Amendments of 1988, 5 U.S.C. app.
3; 42 U.S.C. 2000e-16(a).
Subpart D is also issued under 28 U.S.C. 2672; 28 CFR part 14.
Subpart E is also issued under 29 U.S.C. 794.
Subpart A_Employee Responsibilities and Conduct
Sec. 100.101 Cross-reference to financial disclosure requirements and
other conduct rules.
Employees of the National Labor Relations Board (NLRB) should refer
to the executive branch-wide Standards of Ethical Conduct at 5 CFR part
2635; the NLRB's regulations at 5 CFR part 7101, which supplement the
executive branch-wide standards; the employee responsibilities and
conduct regulations at 5 CFR part 735; and the executive branch
financial disclosure regulations at 5 CFR part 2634.
[62 FR 6448, Feb. 12, 1997]
Subpart B_Cooperation in Audits and Investigations
Sec. 100.201 Audits and investigations.
(a) Employees shall cooperate fully with any audit or investigation
conducted by the Office of the Inspector General involving matters that
fall within the jurisdiction and authority of the Inspector General, as
defined in the Inspector General Act of 1978, as amended, or with any
audit or investigation conducted by any Agency official or department,
including, but not limited to, the Office of Equal Employment
Opportunity, involving matters that relate to or have an effect on the
official business of the Agency. Such cooperation shall include, among
other things, responding to requests for information, providing
statements under oath relating to such audits or investigations, and
affording access to Agency records and/or any other Agency materials in
an employee's possession.
(b) The obstruction of an audit or investigation, concealment of
information, intentional furnishing of false or misleading information,
refusal to provide information and/or answer questions, or refusal to
provide a statement under oath, by an employee to an auditor or
investigator pursuant to any audit or investigation as described in
paragraph (a) of this section, may result in disciplinary action against
an employee. However, nothing herein shall be construed to deny,
abridge, or
[[Page 8]]
otherwise restrict the rights, privileges, or other entitlements or
protections afforded to Agency employees.
[59 FR 37158, July 21, 1994]
Subpart C--Employee Personal Property Loss Claims [Reserved]
Subpart D_Claims Under the Federal Tort Claims Act
Sec. 100.401 Claims under the Federal Tort Claims Act for loss of
or damage to property or for personal injury or death.
(a) Filing of claims. Pursuant to 28 U.S.C. 2672, any claim under
the Federal Tort Claims Act for money damages for loss of or injury to
property, or for personal injury or death, caused by the negligent or
wrongful act or omission of any employee of the National Labor Relations
Board while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be
liable to the claimant for such loss, injury or death in accordance with
the law of the place where the act or omission occurred, may be
presented to the Director of Administration, 1099 Fourteenth Street,
NW., Washington, DC 20570, or to any regional office of the National
Labor Relations Board, at any time within 2 years after such claim has
accrued. Such a claim may be presented by a person specified in 28 CFR
14.3, in the manner set out in 28 CFR 14.2 and 14.3, and shall be
accompanied by as much of the appropriate information specified in 28
CFR 14.4 as may reasonably be obtained.
(b) Action on claims. The Director, Division of Administration,
shall have the power to consider, ascertain, adjust, determine,
compromise, and settle any claim referred to in, and presented in
accordance with paragraph (a) of this section. The Chief, Security
Staff, can process and adjust claims under $100 in accordance with
delegated authority from the Director. Legal review is required by the
General Counsel or designee for all claims in the amount of $5,000 or
more, 28 CFR 14.5. Any exercise of such power shall be in accordance
with 28 U.S.C. 2672 and 28 CFR part 14.
(c) Payment of awards. Any award, compromise, or settlement in an
amount of $2,500 or less made pursuant to this action will be paid by
the Director of Administration out of appropriations available to the
National Labor Relations Board. Payment of any award, compromise, or
settlement in an amount in excess of $2,500 made pursuant to this
section will be obtained in accordance with 28 CFR 14.10.
[59 FR 37159, July 21, 1994]
Subpart E_Enforcement of Nondiscrimination on the Basis of Handicap in
Programs or Activities Conducted by the National Labor Relations Board
Source: 53 FR 25884, 25885, July 8, 1988, unless otherwise noted.
Redesignated at 59 FR 37159, July 21, 1994.
Sec. 100.501 Purpose.
The purpose of this regulation is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of handicap in programs
or activities conducted by Executive agencies or the United States
Postal Service.
Sec. 100.502 Application.
This regulation (Sec. Sec. 100.501-100.570) applies to all programs
or activities conducted by the agency, except for programs or activities
conducted outside the United States that do not involve individuals with
handicaps in the United States.
[53 FR 25884 and 25885, July 8, 1988. Redesignated at 59 FR 37159, July
21, 1994, and amended at 60 FR 32587, June 23, 1995]
Sec. 100.503 Definitions.
For purposes of this regulation, the term--
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
[[Page 9]]
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term ``physical or mental
impairment'' includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
and drug addiction and alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Qualified individual with handicaps means--
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, an individual with handicaps who is a
member of a class of persons otherwise entitled by statute, regulation,
or agency policy to receive education services from the agency;
(2) With respect to any other agency program or activity under which
a person is required to perform services or
[[Page 10]]
to achieve a level of accomplishment, an individual with handicaps who
meets the essential eligibility requirements and who can achieve the
purpose of the program or activity without modifications in the program
or activity that the agency can demonstrate would result in a
fundamental alteration in its nature;
(3) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this regulation by Sec. 100.540.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this regulation, section 504 applies only to programs or
activities conducted by Executive agencies and not to federally assisted
programs.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
[53 FR 25884 and 25885, July 8, 1988. Redesignated at 59 FR 37159, July
21, 1994, and amended at 60 FR 32587, June 23, 1995]
Sec. Sec. 100.504-100.509 [Reserved]
Sec. 100.510 Self-evaluation.
(a) The agency shall, by September 6, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this regulation and, to the extent modification
of any such policies and practices is required, the agency shall proceed
to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following completion
of the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
Sec. 100.511 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this regulation and its
applicability to the programs or activities conducted by the agency, and
make such information available to them in such manner as the head of
the agency finds necessary to apprise such persons of the protections
against discrimination assured them by section 504 and this regulation.
Sec. Sec. 100.512-100.529 [Reserved]
Sec. 100.530 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit,
[[Page 11]]
or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with handicaps to discrimination
on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the agency are
not, themselves, covered by this regulation.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this regulation.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
Sec. Sec. 100.531-100.539 [Reserved]
Sec. 100.540 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subject to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR part 1613, shall apply to employment in federally conducted
programs or activities.
Sec. Sec. 100.541-100.548 [Reserved]
Sec. 100.549 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 100.550, no qualified
individual with handicaps shall, because the agency's facilities are
inaccessible to or unusable by individuals with handicaps, be denied the
benefits of, be excluded from
[[Page 12]]
participation in, or otherwise be subjected to discrimination under any
program or activity conducted by the agency.
[53 FR 25884 and 25885, July 8, 1988. Redesignated at 59 FR 37159, July
21, 1994, and amended at 60 FR 32587, June 23, 1995]
Sec. 100.550 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps;
(2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 100.550(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
individuals with handicaps receive the benefits and services of the
program or activity.
(b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by individuals with handicaps. The agency is
not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.
The agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of
Sec. 100.550(a) in historic preservation programs, the agency shall
give priority to methods that provide physical access to individuals
with handicaps. In cases where a physical alteration to an historic
property is not required because of Sec. 100.550(a) (2) or (3),
alternative methods of achieving program accessibility include--
(i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
(ii) Assigning persons to guide individuals with handicaps into or
through portions of historic properties that cannot otherwise be made
accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by November 7, 1988, except
that where structural changes in facilities are undertaken, such changes
shall be made by September 6, 1991, but in any event as expeditiously as
possible.
[[Page 13]]
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by March 6, 1989, a transition plan setting forth
the steps necessary to complete such changes. The agency shall provide
an opportunity to interested persons, including individuals with
handicaps or organizations representing individuals with handicaps, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
[53 FR 25884 and 25885, July 8, 1988. Redesignated at 59 FR 37159, July
21, 1994, and amended at 60 FR 32587, June 23, 1995]
Sec. 100.551 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and standards
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Sec. Sec. 100.552-100.559 [Reserved]
Sec. 100.560 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 100.560 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency
[[Page 14]]
resources available for use in the funding and operation of the
conducted program or activity and must be accompanied by a written
statement of the reasons for reaching that conclusion. If an action
required to comply with this section would result in such an alteration
or such burdens, the agency shall take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that, to the maximum extent possible, individuals with handicaps
receive the benefits and services of the program or activity.
[53 FR 25884 and 25885, July 8, 1988. Redesignated at 59 FR 37159, July
21, 1994, and amended at 60 FR 32587, June 23, 1995]
Sec. Sec. 100.561-100.569 [Reserved]
Sec. 100.570 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs and activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Director of Administration shall be responsible for
coordinating implementation of this section. Complaints may be sent to
Director of Administration, National Labor Relations Board, 1099
Fourteenth Street NW., Washington, DC 20570.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate Government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 100.170(g). The agency may
extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of
the agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
[53 FR 25884 and 25885, July 8, 1988, as amended at 53 FR 25884, July 8,
1988. Redesignated and amended at 59 FR 37159, July 21, 1994]
[[Page 15]]
Sec. Sec. 100.571-100.599 [Reserved]
PART 101_STATEMENTS OF PROCEDURES--Table of Contents
Subpart A_General Statement
Sec.
101.1 General statement.
Subpart B_Unfair Labor Practice Cases Under Section 10 (a) to (i) of the
Act and Telegraph Merger Act Cases
101.2 Initiation of unfair labor practice cases.
101.3 [Reserved]
101.4 Investigation of charges.
101.5 Withdrawal of charges.
101.6 Dismissal of charges and appeals to the General Counsel.
101.7 Settlements.
101.8 Complaints.
101.9 Settlement after issuance of complaint.
101.10 Hearings.
101.11 Administrative law judge's decision.
101.12 Board decision and order.
101.13 Compliance with Board decision and order.
101.14 Judicial review of Board decision and order.
101.15 Compliance with court judgment.
101.16 Backpay proceedings.
Subpart C_Representation Cases Under Section 9(c) of the Act and
Petitions for Clarification of Bargaining Units and for Amendment of
Certifications Under Section 9(b) of the Act
101.17 Initiation of representation cases and petitions for
clarification and amendment.
101.18 Investigation of petition.
101.19 Consent adjustments before formal hearing.
101.20 Formal hearing.
101.21 Procedure after hearing.
Subpart D_Unfair Labor Practice and Representation Cases Under Sections
8(b)(7) and 9(c) of the Act
101.22 Initiation and investigation of a case under section 8(b)(7).
101.23 Initiation and investigation of a petition in connection with a
case under section 8(b)(7).
101.24 Final disposition of a charge which has been held pending
investigation of the petition.
101.25 Appeal from the dismissal of a petition, or from the refusal to
process it under the expedited procedure.
Subpart E_Referendum Cases Under Section 9(e) (1) and (2) of the Act
101.26 Initiation of rescission of authority cases.
101.27 Investigation of petition; withdrawals and dismissals.
101.28 Consent agreements providing for election.
101.29 Procedure respecting election conducted without hearing.
101.30 Formal hearing and procedure respecting election conducted after
hearing.
Subpart F_Jurisdictional Dispute Cases Under Section 10(k) of the Act
101.31 Initiation of proceedings to hear and determine jurisdictional
disputes under section 10(k).
101.32 Investigation of charges; withdrawal of charges; dismissal of
charges and appeals to Board.
101.33 Initiation of formal action; settlement.
101.34 Hearing.
101.35 Procedure before the Board.
101.36 Compliance with determination; further proceedings.
Subpart G_Procedure Under Section 10 (j) and (l) of the Act
101.37 Application for temporary relief or restraining orders.
101.38 Change of circumstances.
Subpart H_Advisory Opinions and Declaratory Orders Regarding Board
Jurisdiction
101.39 Initiation of advisory opinion case.
101.40 Proceedings following the filing of the petition.
101.41 Informal procedures for obtaining opinions on jurisdictional
questions.
101.42 Procedures for obtaining declaratory orders of the Board.
101.43 Proceedings following the filing of the petition.
Authority: Sec. 6 of the National Labor Relations Act, as amended
(29 U.S.C. 151, 156), and sec. 552(a) of the Administrative Procedure
Act (5 U.S.C. 552(a)). Section 101.14 also issued under sec. 2112(a)(1)
of Pub. L. 100-236, 28 U.S.C. 2112(a)(1).
Source: 52 FR 23968, June 26, 1987, unless otherwise noted.
Subpart A_General Statement
Sec. 101.1 General statement.
The following statements of the general course and method by which
the
[[Page 16]]
Board's functions are channeled and determined are issued and published
pursuant to 5 U.S.C. 552(a)(1)(B).
Subpart B_Unfair Labor Practice Cases Under Section 10 (a) to (i) of the
Act and Telegraph Merger Act Cases
Sec. 101.2 Initiation of unfair labor practice cases.
The investigation of an alleged violation of the National Labor
Relations Act is initiated by the filing of a charge, which must be in
writing and signed, and must either be notarized or must contain a
declaration by the person signing it, under the penalties of the
Criminal Code, that its contents are true and correct to the best of the
persons' knowledge and belief. The charge is filed with the Regional
Director for the Region in which the alleged violations have occurred or
are occurring. A blank form for filing such charge is supplied by the
Regional Office upon request. The charge contains the name and address
of the person against whom the charge is made and a statement of the
facts constituting the alleged unfair labor practices.
Sec. 101.3 [Reserved]
Sec. 101.4 Investigation of charges.
When the charge is received in the Regional Office it is filed,
docketed, and assigned a case number. The Regional Director may cause a
copy of the charge to be served on the person against whom the charge is
made, but timely service of a copy of the charge within the meaning of
the proviso to section 10(b) of the Act is the exclusive responsibility
of the charging party and not of the Regional Director. The Regional
Director requests the person filing the charge to submit promptly
evidence in its support. As part of the investigation hereinafter
mentioned, the person against whom the charge is filed, hereinafter
called the respondent, is asked to submit a statement of position in
respect to the allegations. The case is assigned for investigation to a
member of the field staff, who interviews representatives of the parties
and other persons who have knowledge as to the charge, as is deemed
necessary. In the investigation and in all other stages of the
proceedings, charges alleging violations of section 8(b)(4) (A), (B),
and (C), charges alleging violations of section 8(b)(4)(D) in which it
is deemed appropriate to seek injunctive relief under section 10(1) of
the Act, and charges alleging violations of section 8(b)(7) or 8(e) are
given priority over all other cases in the office in which they are
pending except cases of like character; and charges alleging violations
of sections 8(a)(3) or 8(b)(2) are given priority over all other cases
except cases of like character and cases under section 10(1) of the Act.
The Regional Director may exercise discretion to dispense with any
portion of the investigation described in this section as appears
necessary in consideration of such factors as the amount of time
necessary to complete a full investigation, the nature of the
proceeding, and the public interest. After investigation, the case may
be disposed of through informal methods such as withdrawal, dismissal,
or settlement; or the case may necessitate formal methods of
disposition. Some of the informal methods of handling unfair labor
practice cases will be stated first.
Sec. 101.5 Withdrawal of charges.
If investigation reveals that there has been no violation of the
National Labor Relations Act or the evidence is insufficient to
substantiate the charge, the Regional Director recommends withdrawal of
the charge by the person who filed. Withdrawal may also be requested on
the initiative of the complainant. If the complainant accepts the
recommendation of the Regional Director or requests withdrawal, the
respondent is immediately notified of the withdrawal of the charge.
Sec. 101.6 Dismissal of charges and appeals to the General Counsel.
If the complainant refuses to withdraw the charge as recommended,
the Regional Director dismisses the charge. The Regional Director
thereupon informs the parties of this section, together with a simple
statement of the grounds therefor, and the complainant's right of appeal
to the General Counsel in Washington, DC, within 14 days. If the
complainant appeals to
[[Page 17]]
the General Counsel, the entire file in the case is sent to Washington,
DC, where the case is fully reviewed by the General Counsel with staff
assistance. Oral presentation of the appeal issues may be permitted a
party on timely written request, in which event the other parties are
notified and afforded a like opportunity at another appropriate time.
Following such review, the General Counsel may sustain the Regional
Director's dismissal, stating the grounds of affirmance, or may direct
the Regional Director to take further action.
Sec. 101.7 Settlements.
Before any complaint is issued or other formal action taken, the
Regional Director affords an opportunity to all parties for the
submission and consideration of facts, argument, offers of settlement,
or proposals of adjustment, except where time, the nature of the
proceeding, and the public interest do not permit. Normally prehearing
conferences are held, the principal purpose of which is to discuss and
explore such submissions and proposals of adjustment. The Regional
Office provides Board-prepared forms for such settlment agreements, as
well as printed notices for posting by the respondent. These agreements,
which are subject to the approval of the Regional Director, provide for
an appeal to the General Counsel, as described in Sec. 101.6, by a
complainant who will not join in a settlement or adjustment deemed
adequate by the Regional Director. Proof of compliance is obtained by
the Regional Director before the case is closed. If the respondent fails
to perform the obligations under the informal agreement, the Regional
Director may determine to institute formal proceedings.
Sec. 101.8 Complaints.
If the charge appears to have merit and efforts to dispose of it by
informal adjustment are unsuccessful, the Regional Director institutes
formal action by issuance of a complaint and notice of hearing. In
certain types of cases, involving novel and complex issues, the Regional
Director, at the discretion of the General Counsel, must submit the case
for advice from the General Counsel before issuing a complaint. The
complaint, which is served on all parties, sets forth the facts upon
which the Board bases its jurisidiction and the facts relating to the
alleged violations of law by the respondent. The respondent must file an
answer to the complaint within 14 days of its receipt, setting forth a
statement of its defense.
Sec. 101.9 Settlement after issuance of complaint.
(a) Even though formal proceedings have begun, the parties again
have full opportunity at every stage to dispose of the case by amicable
adjustment and in compliance with the law. Thus, after the complaint has
been issued and a hearing scheduled or commenced, the attorney in charge
of the case and the Regional Director afford all parties every
opportunity for the submission and consideration of facts, argument,
offers of settlement, or proposals of adjustment, except where time, the
nature of the proceeding, and the public interest do not permit.
(b)(1) After the issuance of a complaint, the Agency favors a formal
settlement agreement, which is subject to the approval of the Board in
Washington, DC. In such an agreement, the parties agree to waive their
right to hearing and agree further that the Board may issue an order
requiring the respondent to take action appropriate to the terms of the
settlement. Ordinarily the formal settlement agreement also contains the
respondent's consent to the Board's application for the entry of a
judgment by the appropriate circuit court of appeals enforcing the
Board's order.
(2) In some cases, however, the Regional Director, who has authority
to withdraw the complaint before the hearing (Sec. 102.18), may
conclude that an informal settlement agreement of the type described in
Sec. 101.7 is appropriate. Such agreement is not subject to approval by
the Board and does not provide for a Board order. It provides for the
withdrawal of the complaint.
(c)(1) If after issuance of a complaint but before opening of the
hearing, the charging party will not join in a settlement tentatively
agreed upon by the Regional Director, the respondent, and
[[Page 18]]
any other parties whose consent may be required, the Regional Director
serves a copy of the proposed settlement agreement on the charging party
with a brief written statement of the reasons for proposing its
approval. Within 7 days after service of these documents, the charging
party may file with the Regional Director a written statement of any
objections to the proposed settlement. Such objections will be
considered by the Regional Director in determining whether to approve
the proposed settlement. If the settlement is approved by the Regional
Director notwithstanding the objections, the charging party is so
informed and provided a brief written statement of the reasons for the
approval.
(2) If the settlement agreement approved by the Regional Director is
a formal one, providing for the entry of a Board order, the settlement
agreement together with the charging party's objections and the Regional
Director's written statements are submitted to Washington, DC, where
they are reviewed by the General Counsel. If the General Counsel decides
to approve the settlement agreement, the charging party is so informed
and the agreement and accompanying documents are submitted to the Board,
upon whose approval the settlement is contingent. Within 7 days after
service of notice of submission of the settlement agreement to the
Board, the charging party may file with the Board in Washington, DC, a
further statement in support of objections to the settlement agreement.
(3) If the settlement agreement approved by the Regional Director is
an informal one, providing for the withdrawal of the complaint, the
charging party may appeal the Regional Director's action to the General
Counsel, as provided in Sec. 102.19 of the Board's Rules and
Regulations.
(d)(1) If the settlement occurs after the opening of the hearing and
before issuance of the administrative law judge's decision and there is
an all-party informal settlement, the request for withdrawal of the
complaint must be submitted to the administrative law judge for
approval. If the all-party settlement is a formal one, final approval
must come from the Board. If any party will not join in the settlement
agreed to by the other parties, the administrative law judge will give
such party an opportunity to state on the record or in writing its
reasons for opposing the settlement.
(2) If the administrative law judge decides to accept or reject the
proposed settlement, any party aggrieved by such ruling may ask for
leave to appeal to the Board as provided in Sec. 102.26.
(e)(1) In the event the respondent fails to comply with the terms of
a settlement stipulation, upon which a Board order and court judgment
are based, the Board may petition the court to adjudge the respondent in
contempt. If the respondent refuses to comply with the terms of a
settlement stipulation providing solely for the entry of a Board order,
the Board may petition the court for enforcement of its order pursuant
to section 10 of the National Labor Relations Act.
(2) In the event the respondent fails to comply with the terms of an
informal settlement agreement, the Regional Director may set the
agreement aside and institute further proceedings.
Sec. 101.10 Hearings.
(a) Except in extraordinary situations the hearing is open to the
public and usually conducted in the Region where the charge originated.
A duly designated administrative law judge presides over the hearing.
The Government's case is conducted by an attorney attached to the
Board's Regional Office, who has the responsibility of presenting the
evidence in support of the complaint. The rules of evidence applicable
in the district courts of the United States under the Rules of Civil
Procedure adopted by the Supreme Court are, so far as practicable,
controlling. Counsel for the General Counsel, all parties to the
proceeding, and the administrative law judge have the power to call,
examine, and cross-examine witnesses and to introduce evidence into the
record. They may also submit briefs, engage in oral argument, and submit
proposed findings and conclusions to the administrative law judge. The
attendance and testimony
[[Page 19]]
of witnesses and the production of evidence material to any matter under
investigation may be compelled by subpoena.
(b) The functions of all administrative law judges and other Board
agents or employees participating in decisions in conformity with
section 8 of the Administrative Procedure Act (5 U.S.C. 557) are
conducted in an impartial manner and any such administrative law judge,
agent, or employee may at any time withdraw if he or she deems himself
or herself disqualified because of bias or prejudice. The Board's
attorney has the burden of proof of violations of section 8 of the
National Labor Relations Act and section 222(f) of the Telegraph Merger
Act. In connection with hearings subject to the provisions of section 7
of the Administrative Procedure Act (5 U.S.C. 556):
(1) No sanction is imposed or rule or order issued except upon
consideration of the whole record or such portions thereof as may be
cited by any party and as supported by and in accordance with the
preponderance of the reliable, probative, and substantial evidence.
(2) Every party has the right to present its case or defense by oral
or documentary evidence, to submit rebuttal evidence, and to conduct
such cross-examination as may be required for a full and true disclosure
of the facts.
(3) Where any decision rests on official notice of a material fact
not appearing in the evidence in the record, any party is on timely
request afforded a reasonable opportunity to show the contrary.
(4) Subject to the approval of the administrative law judge, all
parties to the proceeding voluntarily may enter into a stipulation
dispensing with a verbatim written transcript of record of the oral
testimony adduced at the hearing and providing for the waiver by the
respective parties of their right to file with the Board exceptions to
the findings of fact (but not to conclusions of law or recommended
orders) in the administrative law judge's decision.
Sec. 101.11 Administrative law judge's decision.
(a) At the conclusion of the hearing the administrative law judge
prepares a decision stating findings of fact and conclusions, as well as
the reasons for the determinations on all material issues, and making
recommendations as to action which should be taken in the case. The
administrative law judge may recommend dismissal or sustain the
complaint, in whole or in part, and recommend that the respondent cease
and desist from the unlawful acts found and take action to remedy their
effects.
(b) The administrative law judge's decision is filed with the Board
in Washington, DC, and copies are simultaneously served on each of the
parties. At the same time the Board, through its Executive Secretary,
issues and serves on each of the parties an order transferring the case
to the Board. The parties may accept and comply with the administrative
law judge's recommended order, which, in the absence of exceptions,
shall become the order of the Board. Or, the parties or counsel for the
Board may file exceptions to the administrative law judge's decision
with the Board. Whenever any party files exceptions, any other party may
file an answering brief limited to questions raised in the exceptions
and/or may file cross-exceptions relating to any portion of the
administrative law judge's decision. Cross-exceptions may be filed only
by a party who has not previously filed exceptions. Whenever any party
files cross-exceptions, any other party may file an answering brief to
the cross-exceptions. The parties may request permission to appear and
argue orally before the Board in Washington, DC. They may also submit
proposed findings and conclusions to the Board.
Sec. 101.12 Board decision and order.
(a) If any party files exceptions to the administrative law judge's
decision, the Board, with the assistance of the staff counsel to each
Board Member who function in much the same manner as law clerks do for
judges, reviews the entire record, including the administrative law
judge's decision and recommendations, the exceptions thereto, the
complete transcript of evidence, and the exhibits, briefs, and
arguments. The Board does not consult with members of the administrative
[[Page 20]]
law judge's staff of the division of judges or with any agent of the
General Counsel in its deliberations. It then issues its decision and
order in which it may adopt, modify, or reject the findings and
recommendations of the administrative law judge. The decision and order
contains detailed findings of fact, conclusions of law, and basic
reasons for decision on all material issues raised, and an order either
dismissing the complaint in whole or in part or requiring the respondent
to cease and desist from its unlawful practices and to take appropriate
affirmative action.
(b) If no exceptions are filed, the administrative law judge's
decision and recommended order automatically become the decision and
order of the Board pursuant to section 10(c) of the Act. All objections
and exceptions, whether or not previously made during or after the
hearing, are deemed waived for all purposes.
Sec. 101.13 Compliance with Board decision and order.
(a) Shortly after the Board's decision and order is issued the
Director of the Regional Office in which the charge was filed
communicates with the respondent for the purpose of obtaining
compliance. Conferences may be held to arrange the details necessary for
compliance with the terms of the order.
(b) If the respondent effects full compliance with the terms of the
order, the Regional Director submits a report to that effect to
Washington, DC, after which the case may be closed. Despite compliance,
however, the Board's order is a continuing one; therefore, the closing
of a case on compliance is necessarily conditioned upon the continued
observance of that order; and in some cases it is deemed desirable,
notwithstanding compliance, to implement the order with an enforcing
court judgment. Subsequent violations of the order may become the basis
of further proceedings.
Sec. 101.14 Judicial review of Board decision and order.
If the respondent does not comply with the Board's order, or the
Board deems it desirable to implement the order with a court judgment,
the Board may petition the appropriate Federal court for enforcement.
Or, the respondent or any person aggrieved by a final order of the Board
may petition the circuit court of appeals to review and set aside the
Board's order. If a petition for review is filed, the respondent or
aggrieved person must ensure that the Board receives, by service upon
its Deputy Associate General Counsel of the Appellate Court Branch, a
court-stamped copy of the petition with the date of filing. Upon such
review or enforcement proceedings, the court reviews the record and the
Board's findings and order and sustains them if they are in accordance
with the requirements of law. The court may enforce, modify, or set
aside in whole or in part the Board's findings and order, or it may
remand the case to the Board for further proceedings as directed by the
court. Following the court's judgment, either the Government or the
private party may petition the Supreme Court for review upon writ of
certiorari. Such applications for review to the Supreme Court are
handled by the Board through the Solicitor General of the United States.
[53 FR 24440, June 29, 1988]
Sec. 101.15 Compliance with court judgment.
After a Board order has been enforced by a court judgment, the Board
has the responsibility of obtaining compliance with that judgment.
Investigation is made by the Regional Office of the respondent's efforts
to comply. If it finds that the respondent has failed to live up to the
terms of the court's judgment, the General Counsel may, on behalf of the
Board, petition the court to hold the respondent in contempt of court.
The court may order immediate remedial action and impose sanctions and
penalties.
Sec. 101.16 Backpay proceedings.
(a) After a Board order directing the payment of backpay has been
issued or after enforcement of such order by a court judgment, if
informal efforts to dispose of the matter prove unsuccessful, the
Regional Director then has discretion to issue a ``backpay
specification'' in the name of the Board and a
[[Page 21]]
notice of hearing before an administrative law judge, both of which are
served on the parties involved. The specification sets forth
computations showing gross and net backpay due and any other pertinent
information. The respondent must file an answer within 21 days of the
receipt of the specification, setting forth a particularized statement
of its defense.
(b) In the alternative, the Regional Director, under the
circumstances specified above, may issue and serve on the parties a
notice of hearing only, without a specification. Such notice contains,
in addition to the time and place of hearing before an administrative
law judge, a brief statement of the matters in controversy.
(c) The procedure before the administrative law judge or the Board,
whether initiated by the ``backpay specification'' or by notice of
hearing without backpay specification, is substantially the same as that
described in Sec. Sec. 101.10 to 101.14, inclusive.
Subpart C_Representation Cases Under Section 9(c) of the Act and
Petitions for Clarification of Bargaining Units and for Amendment of
Certifications Under Section 9(b) of the Act
Sec. 101.17 Initiation of representation cases and petitions for
clarification and amendment.
The investigation of the question as to whether a union represents a
majority of an appropriate grouping of employees is initiated by the
filing of a petition by any person or labor organization acting on
behalf of a substantial number of employees or by an employer when one
or more individuals or labor organizations present a claim to be
recognized as the exclusive bargaining representative. If there is a
certified or currently recognized representative, any employee, or group
of employees, or any individual or labor organization acting in their
behalf may also file decertification petitions to test the question of
whether the certified or recognized agent is still the representative of
the employees. If there is a certified or currently recognized
representative of a bargaining unit and there is no question concerning
representation, a party may file a petition for clarification of the
bargaining unit. If there is a unit covered by a certification and there
is no question concerning representation, any party may file a petition
for amendment to reflect changed circumstances, such as changes in the
name or affiliation of the labor organization involved or in the name or
location of the employer involved. The petition must be in writing and
signed, and either must be notarized or must contain a declaration by
the person signing it, under the penalties of the Criminal Code, that
its contents are true and correct to the best of his or her knowledge
and belief. It is filed with the Regional Director for the Region in
which the proposed or actual bargaining unit exists. Petition forms,
which are supplied by the Regional Office upon request, provide, among
other things, for a description of the contemplated or existing
appropriate bargaining unit, the approximate number of employees
involved, and the names of all labor organizations which claim to
represent the employees. If a petition is filed by a labor organization
seeking certification, or in the case of a petition to decertify a
certified or recognized bargaining agent, the petitioner must supply,
within 48 hours after filing but in no event later than the last day on
which the petition might timely be filed, evidence of representation.
Such evidence is usually in the form of cards, which must be dated,
authorizing the labor organization to represent the employees or
authorizing the petitioner to file a decertification petition. If a
petition is filed by an employer, the petitioner must supply, within 48
hours after filing, proof of demand for recognition by the labor
organization named in the petition and, in the event the labor
organization named is the incumbent representative of the unit involved,
a statement of the objective considerations demonstrating reasonable
grounds for believing that the labor organization has lost its majority
status.
[[Page 22]]
Sec. 101.18 Investigation of petition.
(a) Upon receipt of the petition in the Regional Office, it is
docketed and assigned to a member of the staff, usually a field
examiner, for investigation. The field examiner conducts an
investigation to ascertain (1) whether the employer's operations affect
commerce within the meaning of the Act, (2) the appropriateness of the
unit of employees for the purposes of collective bargaining and the
existence of a bona fide question concerning representation within the
meaning of the Act, (3) whether the election would effectuate the
policies of the Act and reflect the free choice of employees in the
appropriate unit, and (4) whether, if the petitioner is a labor
organization seeking recognition, there is a sufficient probability,
based on the evidence of representation of the petitioner, that the
employees have selected it to represent them. The evidence of
representation submitted by the petitioning labor organization or by the
person seeking decertification is ordinarily checked to determine the
number or proportion of employees who have designated the petitioner, it
being the Board's administrative experience that in the absence of
special factors the conduct of an election serves no purpose under the
statute unless the petitioner has been designated by at least 30 percent
of the employees. However, in the case of a petition by an employer, no
proof of representation on the part of the labor organization claiming a
majority is required and the Regional Director proceeds with the case if
other factors require it unless the labor organization withdraws its
claim to majority representation. The field examiner, or other member of
the staff, attempts to ascertain from all interested parties whether or
not the grouping or unit of employees described in the petition
constitutes an appropriate bargaining unit. The petition may be amended
at any time prior to hearing and may be amended during the hearing in
the discretion of the hearing officer upon such terms as he or she deems
just.
(b) The petitioner may on its own initiative request the withdrawal
of the petition if the investigation discloses that no question of
representation exists within the meaning of the statute, because, among
other possible reasons, the unit is not appropriate, or a written
contract precludes further investigation at that time, or where the
petitioner is a labor organization or a person seeking decertification
and the showing of representation among the employees is insufficient to
warrant an election under the 30-percent principle stated in paragraph
(a) of this section.
(c) For the same or similar reasons the Regional Director may
request the petitioner to withdraw its petition. If the petitioner,
despite the Regional Director's recommendations, refuses to withdraw the
petition, the Regional Director then dismisses the petition, stating the
grounds for dismissal and informing the petitioner of its right of
appeal to the Board in Washington, DC. The petition may also be
dismissed in the discretion of the Regional Director if the petitioner
fails to make available necessary facts which are in its possession. The
petitioner may within 14 days appeal from the Regional Director's
dismissal by filing such request with the Board in Washington, DC; after
a full review of the file with the assistance of its staff, the Board
may sustain the dismissal, stating the grounds of its affirmance, or may
direct the Regional Director to take further action.
Sec. 101.19 Consent adjustments before formal hearing.
The Board has devised and makes available to the parties three types
of informal consent procedures through which representation issues can
be resolved without recourse to formal procedures. These informal
arrangements are commonly referred to as consent-election agreement
followed by Regional Director's determination, stipulated election
agreement followed by Board certification, and full consent agreement,
in which the parties agree that all pre- and postelection disputes will
be resolved with finality by the Regional Director. Forms for use in
these informal procedures are available in the Regional Offices.
(a)(1) The consent-election agreement followed by the Regional
Director's determination of representatives is one method of informal
adjustment of representation cases. The terms of the agreement providing
for this form
[[Page 23]]
of adjustment are set forth in printed forms, which are available upon
request at the Board's Regional Offices. Under these terms the parties
agree with respect to the appropriate unit, the payroll period to be
used as the basis of eligibility to vote in an election, and the place,
date, and hours of balloting. A Board agent arranges the details
incident to the mechanics and conduct of the election. For example, the
Board agent usually arranges preelection conferences in which the
parties check the list of voters and attempt to resolve any questions of
eligibility. Also, prior to the date of election, the holding of such
election shall be adequately publicized by the posting of official
notices in the establishment whenever possible or in other places, or by
the use of other means considered appropriate and effective. These
notices reproduce a sample ballot and outline such election details as
location of polls, time of voting, and eligibility rules.
(2) The actual polling is always conducted and supervised by Board
agents. Appropriate representatives of each party may assist them and
observe the election. As to the mechanics of the election, a ballot is
given to each eligible voter by the Board's agents. The ballots are
marked in the secrecy of a voting booth. The Board agents and authorized
observers have the privilege of challenging for reasonable cause
employees who apply for ballots.
(3) Customarily the Board agents, in the presence and with the
assistance of the authorized observers, count and tabulate the ballots
immediately after the closing of the polls. A complete tally of the
ballots is made available to the parties upon the conclusion of the
election.
(4) If challenged ballots are sufficient in number to affect the
results of the election, the Regional Director conducts an investigation
and rules on the challenges. Similarly, if objections to the conduct of
the election are filed within 7 days after the tally of ballots has been
prepared, the Regional Director likewise conducts an investigation and
rules on the objections. If, after investigation, the objections are
found to have merit, the Regional Director may void the election results
and conduct a new election.
(5) This form of agreement provides that the rulings of the Regional
Director on all questions relating to the election (for example,
eligibility to vote and the validity of challenges and objections) are
final and binding. Also, the agreement provides for the conduct of a
runoff election, in accordance with the provisions of the Board's Rules
and Regulations, if two or more labor organizations appear on the ballot
and no one choice receives the majority of the valid votes cast.
(6) The Regional Director issues to the parties a certification of
the results of the election, including certifications of representative
where appropriate, with the same force and effect as if issued by the
Board.
(b) The stipulated election agreement followed by a Board
determination provides that disputed matters following the agreed-upon
election, if determinative of the results, can be the basis of a formal
decision by the Board instead of an informal determination by the
Regional Director, except that if the Regional Director decides that a
hearing on objections or challenged ballots is necessary the Director
may direct such a hearing before a hearing officer, or, if the case is
consolidated with an unfair labor practice proceeding, before an
administrative law judge. If a hearing is directed, such action on the
part of the Regional Director constitutes a transfer of the case to the
Board. Thus, except for directing a hearing, it is provided that the
Board, rather than the Regional Director, makes the final determination
of questions raised concerning eligibility, challenged votes, and
objections to the conduct of the election. If challenged ballots are
sufficient in number of affect the results of the election, the Regional
Director conducts an investigation and issues a report on the challenges
instead of ruling thereon, unless the Director elects to hold a hearing.
Similarly, if objections to the conduct of the election are filed within
7 days after the tally of ballots has been prepared, the Regional
Director likewise conducts an investigation and issues a report instead
of ruling on the validity of the objections, unless the Director elects
to hold a
[[Page 24]]
hearing. The Regional Director's report is served on the parties, who
may file exceptions thereto within 14 days with the Board in Washington,
DC. The Board then reviews the entire record made and may, if a
substantial issue is raised, direct a hearing on the challenged ballots
or the objections to the conduct of the election. Or, the Board may, if
no substantial issues are raised, affirm the Regional Director's report
and take appropriate action in termination of the proceedings. If a
hearing is ordered by the Regional Director or the Board on the
challenged ballots or objections, all parties are heard and a report
containing findings of fact and recommendations as to the disposition of
the challenges or objections, or both, and resolving issues of
credibility is issued by the hearing officer and served on the parties,
who may file exceptions thereto within 14 days with the Board in
Washington, DC. The record made on the hearing is reviewed by the Board
with the assistance of its staff counsel and a final determination made
thereon. If the objections are found to have merit, the election results
may be voided and a new election conducted under the supervision of the
Regional Director. If the union has been selected as the representative,
the Board or the Regional Director, as the case may be, issues its
certification and the proceeding is terminated. If upon a
decertification or employer petition the union loses the election, the
Board or the Regional Director, as the case may be, certifies that the
union is not the chosen representative.
(c) The full consent-election agreement followed by the Regional
Director's determination of representatives is another method of
informal adjustment of representation cases.
(1) Under these terms the parties agree that if they are unable to
informally resolve disputes arising with respect to the appropriate unit
and other issues pertaining to the resolution of the question concerning
representation; the payroll period to be used as the basis of
eligibility to vote in an election, the place, date, and hours of
balloting, or other details of the election, those issues will be
presented to, and decided with finality by the Regional Director after a
hearing conducted in a manner consistent with the procedures set forth
in Sec. 101.20.
(2) Upon the close of the hearing, the entire record in the case is
forwarded to the Regional Director. The hearing officer also transmits
an analysis of the issues and the evidence, but makes no recommendations
as to resolution of the issues. All parties may file briefs with the
Regional Director within 7 days after the close of the hearing. The
parties may also request to be heard orally. After review of the entire
case, the Regional Director issues a final decision, either dismissing
the petition or directing that an election be held. In the latter event,
the election is conducted under the supervision of the Regional Director
in the manner already described in this section.
(3) All matters arising after the election, including determinative
challenged ballots and objections to the conduct of the election shall
be processed in a manner consistent with paragraphs (a)(4), (5), and (6)
of this section.
[70 FR 3477, Jan. 25, 2005, as amended at 70 FR 3477, Jan. 25, 2005]
Sec. 101.20 Formal hearing.
(a) If no informal adjustment of the question concerning
representation has been effected and it appears to the Regional Director
that formal action is necessary, the Regional Director will institute
formal proceedings by issuance of a notice of hearing on the issues,
which is followed by a decision and direction of election or dismissal
of the case. In certain types of cases, involving novel or complex
issues, the Regional Director may submit the case for advice to the
Board before issuing notice of hearing.
(b) The notice of hearing, together with a copy of the petition, is
served on the unions and employer filing or named in the petition and on
other known persons or labor organizations claiming to have been
designated by employees involved in the proceeding.
(c) The hearing, usually open to the public, is held before a
hearing officer who normally is an attorney or field examiner attached
to the Regional Office but may be another qualified Agency official. The
hearing, which is nonadversary in character, is part of the
[[Page 25]]
investigation in which the primary interest of the Board's agents is to
ensure that the record contains as full a statement of the pertinent
facts as may be necessary for determination of the case. The parties are
afforded full opportunity to present their respective positions and to
produce the significant facts in support of their contentions. In most
cases a substantial number of the relevant facts are undisputed and
stipulated. The parties are permitted to argue orally on the record
before the hearing officer.
Sec. 101.21 Procedure after hearing.
(a) Pursuant to section 3(b) of the Act, the Board has delegated to
its Regional Directors its powers under section 9 of the Act to
determine the unit appropriate for the purpose of collective bargaining,
to investigate and provide for hearings and determine whether a question
of representation exists, and to direct an election or take a secret
ballot under subsection (c) or (e) of section 9 and certify the results
thereof. These powers include the issuance of such decisions, orders,
rulings, directions, and certifications as are necessary to process any
representation or deauthorization petition. Thus, by way of illustration
and not of limitation, the Regional Director may dispose of petitions by
administrative dismissal or by decision after formal hearing; pass upon
rulings made at hearings and requests for extensions of time for filing
of briefs; rule on objections to elections and challenged ballots in
connection with elections Directed by the Regional Director or the
Board, after administrative investigation or fomal hearing; rule on
motions to amend or rescind any certification issued after the effective
date of the delegation; and entertain motions for oral argument. The
Regional Director may at any time transfer the case to the Board for
decision, but until such action is taken, it will be presumed that the
Regional Director will decide the case. In the event the Regional
Director decides the issues in a case, the decision is final subject to
the review procedure set forth in the Board's Rules and Regulations.
(b) Upon the close of the hearing, the entire record in the case is
forwarded to the Regional Director or, upon issuance by the Regional
Director of an order transferring the case, to the Board in Washington,
DC. The hearing officer also transmits an analysis of the issues and the
evidence, but makes no recomendations in regard to resolution of the
issues. All parties may file briefs with the Regional Director or, if
the case is transferred to the Board at the close of the hearing, with
the Board, within 7 days after the close of the hearing. If the case is
transferred to the Board after the close of the hearing, briefs may be
filed with the Board within the time prescribed by the Regional
Director. The parties may also request to be heard orally. Because of
the nature of the proceedings, however, permission to argue orally is
rarely granted. After review of the entire case, the Regional Director
or the Board issues a decision, either dismissing the petition or
directing that an election be held. In the latter event, the election is
conducted under the supervision of the Regional Director in the manner
already described in Sec. 101.19.
(c) With respect to objections to the conduct of the election and
challenged ballots, the Regional Director has discretion (1) to issue a
report on such objections and/or challenged ballots and transmit the
issues to the Board for resolution, as in cases involving stipulated
elections to be followed by Board certifications, or (2) to decide the
issues on the basis of the administrative investigation or after a
hearing, with the right to transfer the case to the Board for decision
at any time prior to disposition of the issues on the merits. In the
event the Regional Director adopts the first procedure, the parties have
the same rights, and the same procedure is followed, as has already been
described in connection with the postelection procedures in cases
involving stipulated elections to be followed by Board certifications.
In the event the Regional Director adopts the second procedure, the
parties have the same rights, and the same procedure is followed, as has
already been described in connection with hearings before elections.
(d) The parties have the right to request review of any final
decision of
[[Page 26]]
the Regional Director, within the times set forth in the Board's Rules
and Regulations, on one or more of the grounds specified therein. Any
such request for review must be a self-contained document permitting the
Board to rule on the basis of its contents without the necessity of
recourse to the record, and must meet the other requirements of the
Board's Rules and Regulations as to its contents. The Regional
Director's action is not stayed by the filing of such a request or the
granting of review, unless otherwise ordered by the Board. Thus, the
Regional Director may proceed immediately to make any necessary
arrangements for an election, including the issuance of a notice of
election. However, unless a waiver is filed, the Director will normally
not schedule an election until a date between the 25th and 30th days
after the date of the decision, to permit the Board to rule on any
request for review which may be filed. As to administrative dismissals
prior to the close of hearing, see Sec. 101.18(c).
(e) If the election involves two or more labor organizations and if
the election results are inconclusive because no choice on the ballot
received the majority of valid votes cast, a runoff election is held as
provided in the Board's Rules and Regulations.
Subpart D_Unfair Labor Practice and Representation Cases Under Sections
8(b)(7) and 9(c) of the Act
Sec. 101.22 Initiation and investigation of a case under section 8(b)(7).
(a) The investigation of an alleged violation of section 8(b)(7) of
the Act is initiated by the filing of a charge. The manner of filing
such charge and the contents thereof are the same as described in Sec.
101.2. In some cases, at the time of the investigation of the charge,
there may be pending a representation petition involving the employees
of the employer named in the charge. In those cases, the results of the
investigation of the charge will determine the cause of the petition.
(b) The investigation of the charge is conducted in accordance with
the provisions of Sec. 101.4, insofar as they are applicable. If the
investigation reveals that there is merit in the charge, a complaint is
issued as described in Sec. 101.8, and an application is made for an
injunction under section 10(1) of the Act, as described in Sec. 101.37.
If the investigation reveals that there is no merit in the charge, the
Regional Director, absent a withdrawal of the charge, dismisses it,
subject to appeal to the General Counsel. However, if the investigation
reveals that issuance of a complaint may be warranted but for the
pendency of a representation petition involving the employees of the
employer named in the charge, action on the charge is suspended pending
the investigation of the petition as provided in Sec. 101.23.
Sec. 101.23 Initiation and investigation of a petition in connection
with a case under section 8(b)(7).
(a) A representation petition \1\ involving the employees of the
employer named in the charge is handled under an expedited procedure
when the investigation of the charge has revealed that:
---------------------------------------------------------------------------
\1\ The manner of filing of such petition and the contents thereof
are the same as described in Sec. 101.17, except that the petitioner is
not required to allege that a claim was made on the employer for
recognition or that the union represents a substantial number of
employees.
---------------------------------------------------------------------------
(1) The employer's operations affect commerce within the meaning of
the Act;
(2) Picketing of the employer is being conducted for an object
proscribed by section 8(b)(7) of the Act;
(3) Subparagraph (C) of that section of the Act is applicable to the
picketing; and
(4) The petition has been filed within a reasonable period of time
not to exceed 30 days from the commencement of the picketing.
In these circumstances, the member of the Regional Director's staff to
whom the matter has been assigned investigates the petition to ascertain
further: the unit appropriate for collective bargaining; and whether an
election in that unit would effectuate the policies of the Act.
(b) If, based on such investigation, the Regional Director
determines that an election is warranted, the Director
[[Page 27]]
may, without a prior hearing, direct that an election be held in an
appropriate unit of employees. Any party aggrieved may file a request
with the Board for special permission to appeal that action to the
Board, but such review, if granted, will not, unless otherwise ordered
by the Board, stay the proceeding. If it is determined that an election
is not warranted, the Director dismisses the petition or makes other
disposition of the matter. Should the Regional Director conclude that an
election is warranted, the Director fixes the basis of eligibility of
voters and the place, date, and hours of balloting. The mechanics of
arranging the balloting, the other procedures for the conduct of the
election, and the postelection proceedings are the same, insofar as
appropriate, as those described in Sec. 101.19, except that the
Regional Director's rulings on any objections to the conduct of the
election or challenged ballots are final and binding, unless the Board,
on an application by one of the parties, grants such party special
permission to appeal from the Regional Director's rulings. The party
requesting such review by the Board must do so promptly, in writing, and
state briefly the grounds relied on. Such party must also immediately
serve a copy on the other parties, including the Regional Director.
Neither the request for review by the Board nor the Board's grant of
such review operates as a stay of any action taken by the Regional
Director, unless specifically so ordered by the Board. If the Board
grants permission to appeal, and it appears to the Board that
substantial and material factual issues have been presented with respect
to the objections to the conduct of the election or challenged ballots,
it may order that a hearing be held on such issues or take other
appropriate action.
(c) If the Regional Director believes, after preliminary
investigation of the petition, that there are substantial issues which
require determination before an election may be held, the Director may
order a hearing on the issues. This hearing is followed by Regional
Director or Board decision and direction of election, or other
disposition. The procedures to be used in connection with such hearing
and posthearing proceedings are the same, insofar as they are
applicable, as those described in Sec. Sec. 101.20 and 101.21, except
that the parties may not file briefs with the Regional Director or the
Board unless special permission therefor is granted, but may state their
respective legal positions fully on the record at the hearing, and
except that any request for review must be filed promptly after issuance
of the Regional Director's decision.
(d) Should the parties so desire, they may, with the approval of the
Regional Director, resolve the issues as to the unit, the conduct of the
balloting, and related matters pursuant to informal consent procedures,
as described in Sec. 101.19(a).
(e) If a petition has been filed which does not meet the
requirements for processing under the expedited procedures, the Regional
Director may process it under the procedures set forth in subpart C.
Sec. 101.24 Final disposition of a charge which has been held pending
investigation of the petition.
(a) Upon the determination that the issuance of a direction of
election is warranted on the petition, the Regional Director, absent
withdrawal of the charge, dismisses it subject to an appeal to the
General Counsel in Washington, DC.
(b) If, however, the petition is dismissed or withdrawn, the
investigation of the charge is resumed, and the appropriate steps
described in Sec. 101.22 are taken with respect to it.
Sec. 101.25 Appeal from the dismissal of a petition, or from the refusal
to process it under the expedited procedure.
If it is determined after investigation of the representation
petition that further proceedings based thereon are not warranted, the
Regional Director, absent withdrawal of the petition, dismisses it,
stating the grounds therefor. If it is determined that the petition does
not meet the requirements for processing under the expedited procedure,
the Regional Director advises the petitioner of the determination to
process the petition under the procedures described in subpart C. In
either event, the Regional Director informs
[[Page 28]]
all the parties of such action, and such action is final, although the
Board may grant an aggrieved party permission to appeal from the
Regional Director's action. Such party must request such review
promptly, in writing, and state briefly the grounds relied on. Such
party must also immediately serve a copy on the other parties, including
the Regional Director. Neither the request for review by the Board, nor
the Board's grant of such review, operates as a stay of the action taken
by the Regional Director, unless specifically so ordered by the Board.
Subpart E_Referendum Cases Under Section 9(e) (1) and (2) of the Act
Sec. 101.26 Initiation of rescission of authority cases.
The investigation of the question as to whether the authority of a
labor organization to make an agreement requiring membership in a labor
organization as a condition of employment is to be rescinded is
initiated by the filing of a petition by an employee or group of
employees on behalf of 30 percent or more of the employees in a
bargaining unit covered by an agreement between their employer and a
labor organization requiring membership in such labor organization. The
petition must be in writing and signed, and either must be notarized or
must contain a declaration by the person signing it, under the penalties
of the Criminal Code, that its contents are true and correct to the best
of his knowledge and belief. It is filed with the Regional Director for
the Region in which the alleged appropriate bargaining unit exists or,
if the bargaining unit exists in two or more Regions, with the Regional
Director for any of such Regions. The blank form, which is supplied by
the Regional Office upon request, provides, among other things, for a
description of the bargaining unit covered by the agreement, the
approximate number of employees involved, and the names of any other
labor organizations which claim to represent the employees. The
petitioner must supply with the petition, or within 48 hours after
filing, evidence of authorization from the employees.
Sec. 101.27 Investigation of petition; withdrawals and dismissals.
(a) Upon receipt of the petition in the Regional Office, it is
filed, docketed, and assigned to a member of the staff, usually a field
examiner, for investigation. The field examiner conducts an
investigation to ascertain:
(1) Whether the employer's operations affect commerce within the
meaning of the Act,
(2) Whether there is in effect an agreement requiring as a condition
of employment membership in a labor organization,
(3) Whether the petitioner has been authorized by at least 30
percent of the employees to file such a petition, and
(4) Whether an election would effectuate the policies of the Act by
providing for a free expression of choice by the employees.
The evidence of designation submitted by the petitioner, usually in the
form of cards signed by individual employees authorizing the filing of
such a petition, is checked to determine the proportion of employees who
desire rescission.
(b) The petitioner may on its own initiative request the withdrawal
of the petition if the investigation discloses that an election is
inappropriate, because, among other possible reasons, the petitioner's
card-showing is insufficient to meet the 30-percent statutory
requirement referred to in subsection (a) of this section.
(c) For the same or similar reasons the Regional Director may
request the petitioner to withdraw its petition. If the petitioner,
despite the Regional Director's recommendation, refuses to withdraw the
petition, the Regional Director then dismisses the petition, stating the
grounds for his dismissal and informing the petitioner of the right of
appeal to the Board in Washington, DC. The petitioner may within 14 days
appeal from the Regional Director's dismissal by filing such request
with the Board in Washington, DC. The request shall contain a complete
statement setting forth the facts and reasons upon which the request is
made. After a full review of the file with the assistance of its staff,
the Board may sustain the dismissal, stating the
[[Page 29]]
grounds for its affirmance, or may direct the Regional Director to take
further action.
Sec. 101.28 Consent agreements providing for election.
(a) The Board makes available to the parties three types of informal
consent procedures through which authorization issues can be resolved
without resort to formal procedures. These informal agreements are
commonly referred to as consent-election agreement followed by Regional
Director's determination, stipulated election agreement followed by
Board certification, and full consent-election agreement providing for
the Regional Director's determination of both pre- and postelection
matters. Forms for use in these informal procedures are available in the
Regional Offices.
(b) The procedures to be used in connection with a consent-election
agreement providing for the Regional Director's determination, a
stipulated election agreement providing for Board certification, and the
full consent-election agreement providing for the Regional Director's
determination of both pre- and postelection matters are the same as
those already described in subpart C of this part in connection with
similar agreements in representation cases under section 9(c) of the
Act, except that no provision is made for runoff elections.
[70 FR 3478, Jan. 25, 2005]
Sec. 101.29 Procedure respecting election conducted without hearing.
If the Regional Director determines that the case is an appropriate
one for election without formal hearing, an election is conducted as
quickly as possible among the employees and upon the conclusion of the
election the Regional Director makes available to the parties a tally of
ballots. The parties, however, have an opportunity to make appropriate
challenges and objections to the conduct of the election and they have
the same rights, and the same procedure is followed, with respect to
objections to the conduct of the election and challenged ballots, as has
already been described in subpart C of the Statements of Procedure in
connection with the postelection procedures in representation cases
under section 9(c) of the Act, except that no provision is made for a
runoff election. If no such objections are filed within 7 days and if
the challenged ballots are insufficient in number to affect the results
of the election, the Regional Director issues to the parties a
certification of the results of the election, with the same force and
effect as if issued by the Board.
Sec. 101.30 Formal hearing and procedure respecting election conducted
after hearing.
(a) The procedures are the same as those described in subpart C of
the Statements of Procedure respecting representation cases arising
under section 9(c) of the Act. If the preliminary investigation
indicates that there are substantial issues which require determination
before an appropriate election may be held, the Regional Director will
institute formal proceedings by issuance of a notice of hearing on the
issues which, after hearing, is followed by Regional Director or Board
decision and direction of election or dismissal. The notice of hearing
together with a copy of the petition is served on the petitioner, the
employer, and any other known persons or labor organizations claiming to
have been designated by employees involved in the proceeding.
(b) The hearing, usually open to the public, is held before a
hearing officer who normally is an attorney or field examiner attached
to the Regional Office but may be another qualified Agency official. The
hearing, which is nonadversary in character, is part of the
investigation in which the primary interest of the Board's agents is to
insure that the record contains as full a statement of the pertinent
facts as may be necessary for determination of the case. The parties are
afforded full opportunity to present their respective positions and to
produce the significant facts in support of their contentions. In most
cases a substantial number of the relevant facts are undisputed and
stipulated. The parties are permitted to argue orally on the record
before the hearing officer.
(c) Upon the close of the hearing, the entire record in the case is
then forwarded to the Regional Director or the
[[Page 30]]
Board, together with an informal analysis by the hearing officer of the
issues and the evidence but without recommendations. All parties may
file briefs with the Regional Director or the Board within 7 days after
the close of the hearing. If the case is transferred to the Board after
the close of the hearing, briefs may be filed with the Board within the
time prescribed by the Regional Director. The parties may also request
to be heard orally. Because of the nature of the proceeding, however,
permission to argue orally is rarely granted. After review of the entire
case, the Board issues a decision either dismissing the petition or
directing that an election be held. In the latter event, the election is
conducted under the supervision of the Regional Director in the manner
already described in Sec. 101.19.
(d) The parties have the same rights, and the same procedure is
followed, with respect to objections to the conduct of the election and
challenged ballots as has already been described in connection with the
postelection procedures in representation cases under section 9(c) of
the Act.
Subpart F_Jurisdictional Dispute Cases Under Section 10(k) of the Act
Sec. 101.31 Initiation of proceedings to hear and determine jurisdictional
disputes under section 10(k).
The investigation of a jurisdictional dispute under section 10(k) is
initiated by the filing of a charge, as described in Sec. 101.2, by any
person alleging a violation of paragraph (4)(D) of section 8(b). As soon
as possible after a charge has been filed, the Regional Director serves
on the parties a copy of the charge together with a notice of the filing
of such charge.
Sec. 101.32 Investigation of charges; withdrawal of charges; dismissal of
charges and appeals to Board.
These matters are handled as described in Sec. Sec. 101.4 to 101.7,
inclusive. Cases involving violation of paragraph (4)(D) of section 8(b)
in which it is deemed appropriate to seek injunctive relief of a
district court pursuant to section 10(1) of the Act are given priority
over all other cases in the office except other cases under section
10(1) of the Act and cases of like character.
Sec. 101.33 Initiation of formal action; settlement.
If, after investigation, it appears that the Board should determine
the dispute under section 10(k) of the Act, the Regional Director issues
a notice of hearing which includes a simple statement of issues involved
in the jurisdictional dispute and which is served on all parties to the
dispute out of which the unfair labor practice is alleged to have
arisen. The hearing is scheduled for not less than 10 days after service
of the notice of the filing of the charge, except that in cases
involving the national defense, agreement will be sought for scheduling
of hearing on less notice. If the parties present to the Regional
Director satisfactory evidence that they have adjusted the dispute, the
Regional Director withdraws the notice of hearing and either permits the
withdrawal of the charge or dismisses the charge. If the parties submit
to the Regional Director satisfactory evidence that they have agreed
upon methods for the voluntary adjustment of the dispute, the Regional
Director shall defer action upon the charge and shall withdraw the
notice of hearing if issued. The parties may agree on an arbitrator, a
proceeding under section 9(c) of the Act, or any other satisfactory
method to resolve the dispute. If the agreed-upon method for voluntary
adjustment results in a determination that employees represented by a
charged union are entitled to perform the work in dispute, the Regional
Director dismisses the charge against that union irrespective of whether
the employer complies with that determination.
Sec. 101.34 Hearing.
If the parties have not adjusted the dispute or agreed upon methods
of voluntary adjustment, a hearing, usually open to the public, is held
before a hearing officer. The hearing is nonadversary in character, and
the primary interest of the hearing officer is to insure that the record
contains as full a statement of the pertinent facts
[[Page 31]]
as may be necessary for a determination of the issues by the Board. All
parties are afforded full opportunity to present their respective
positions and to produce evidence in support of their contentions. The
parties are permitted to argue orally on the record before the hearing
officer. At the close of the hearing, the case is transmitted to the
Board for decision. The hearing officer prepares an analysis of the
issues and the evidence, but makes no recommendations in regard to
resolution of the dispute.
Sec. 101.35 Procedure before the Board.
The parties have 7 days after the close of the hearing, subject to
any extension that may have been granted, to file briefs with the Board
and to request oral argument which the Board may or may not grant.
However, in cases involving the national defense and so designated in
the notice of hearing, the parties may not file briefs but after the
close of the evidence may argue orally upon the record their respective
contentions and positions, except that for good cause shown in an
application expeditiously made to the Board in Washington, DC, after the
close of the hearing, the Board may grant leave to file briefs in such
time as it shall specify. The Board then considers the evidence taken at
the hearing and the hearing officer's analysis together with any briefs
that may be filed and the oral argument, if any, and issues its
determination or makes other disposition of the matter.
Sec. 101.36 Compliance with determination; further proceedings.
After the issuance of determination by the Board, the Regional
Director in the Region in which the proceeding arose communicates with
the parties for the purpose of ascertaining their intentions in regard
to compliance. Conferences may be held for the purpose of working out
details. If satisfied that the parties are complying with the
determination, the Regional Director dismisses the charge. If not
satisfied that the parties are complying, the Regional Director issues a
complaint and notice of hearing, charging violation of section
8(b)(4)(D) of the Act, and the proceeding follows the procedure outlined
in Sec. Sec. 101.8 to 101.15, inclusive. However, if the Board
determines that employees represented by a charged union are entitled to
perform the work in dispute, the Regional Director dismisses the charge
against that union irrespective of whether the employer complies with
the determination.
Subpart G_Procedure Under Section 10 (j) and (l) of the Act
Sec. 101.37 Application for temporary relief or restraining orders.
Whenever it is deemed advisable to seek temporary injunctive relief
under section 10(j) or whenever it is determined that a complaint should
issue alleging violation of section 8(b)(4) (A), (B), or (C), or section
8(e), or section 8(b)(7), or whenever it is appropriate to seek
temporary injunctive relief for a violation of section 8(b)(4)(D), the
officer or regional attorney to whom the matter has been referred will
make application for appropriate temporary relief or restraining order
in the district court of the United States within which the unfair labor
practice is alleged to have occurred or within which the party sought to
be enjoined resides or transacts business, except that such officer or
regional attorney will not apply for injunctive relief under section
10(l) with respect to an alleged violation of section 8(b)(7) if a
charge under section 8(a)(2) has been filed and, after preliminary
investigation, there is reasonable cause to believe that such charge is
true and a complaint should issue.
Sec. 101.38 Change of circumstances.
Whenever a temporary injunction has been obtained pursuant to
section 10(j) and thereafter the administrative law judge hearing the
complaint, upon which the determination to seek such injunction was
predicated, recommends dismissal of such complaint, in whole or in part,
the officer or regional attorney handling the case for the Board
suggests to the district court which issued the temporary injunction the
possible change in circumstances arising out of the findings and
recommendations of the administrative law judge.
[[Page 32]]
Subpart H_Advisory Opinions and Declaratory Orders Regarding Board
Jurisdiction
Sec. 101.39 Initiation of advisory opinion case.
(a) The question of whether the Board will assert jurisdiction over
a labor dispute which is the subject of a proceeding in an agency or
court of a State or territory is initiated by the filing of a petition
with the Board. This petition may be filed only if:
(1) A proceeding is currently pending before such agency or court;
(2) The petitioner is the agency or court itself; and
(3) The relevant facts are undisputed or the agency or court has
already made the relevant factual findings.
(b) The petition must be in writing and signed. It is filed with the
Executive Secretary of the Board in Washington, DC. No particular form
is required, but the petition must be properly captioned and must
contain the allegations required by section 102.99 of the Board's Rules
and Regulations. None of the information sought may relate to the merits
of the dispute. The petition may be withdrawn at any time before the
Board issues its advisory opinion determining whether it would or would
not assert jurisdiction on the basis of the facts before it.
[61 FR 65182, Dec. 11, 1996; 62 FR 52381, Oct. 7, 1997]
Sec. 101.40 Proceedings following the filing of the petition.
(a) A copy of the petition is served on all other parties and the
appropriate Regional Director by the petitioner.
(b) Interested persons may request intervention by a written motion
to the Board. Such intervention may be granted at the discretion of the
Board.
(c) Parties other than the petitioner may reply to the petition in
writing, admitting or denying any or all of the matters asserted
therein.
(d) No briefs shall be filed except upon special permission of the
Board.
(e) After review of the entire record, the Board issues an advisory
opinion as to whether the facts presented would or would not cause it to
assert jurisdiction over the case if the case had been originally filed
before it. The Board will limit its advisory opinion to the
jurisdictional issue confronting it, and will not presume to render an
opinion on the merits of the case or on the question of whether the
subject matter of the dispute is governed by the Labor Management
Relations Act.
Sec. 101.41 Informal procedures for obtaining opinions on jurisdictional
questions.
Although a formal petition is necessary to obtain an advisory
opinion from the Board, other avenues are available to persons seeking
informal and, in most cases, speedy opinions on jurisdictional issues.
In discussion of jurisdictional questions informally with Regional
Office personnel, information and advice concerning the Board's
jurisdictional standards may be obtained. Such practices are not
intended to be discouraged by the rules providing for formal advisory
opinions by the Board, although the opinions expressed by such personnel
are not to be regarded as binding upon the Board or the General Counsel.
Sec. 101.42 Procedures for obtaining declaratory orders of the Board.
(a) When both an unfair labor practice charge and a representation
petition are pending concurrently in a Regional Office, appeals from a
Regional Director's dismissals thereof do not follow the same course.
Appeal from the dismissal of a charge must be made to the General
Counsel, while appeal from dismissal of a representation petition may be
made to the Board. To obtain uniformity in disposing of such cases on
jurisdictional grounds at the same stage of each proceeding, the General
Counsel may file a petition for a declaratory order of the Board. Such
order is intended only to remove uncertainty with respect to the
question of whether the Board would assert jurisdiction over the labor
dispute.
(b) A petition to obtain a declaratory Board order may be filed only
by the General Counsel. It must be in writing
[[Page 33]]
and signed. It is filed with the Executive Secretary of the Board in
Washington, DC. No particular form is required, but the petition must be
properly captioned and must contain the allegations required by Sec.
102.106 of the Board's Rules and Regulations. None of the information
sought relates to the merits of the dispute. The petition may be
withdrawn any time before the Board issues its declaratory order
deciding whether it would or would not assert jurisdiction over the
cases.
Sec. 101.43 Proceedings following the filing of the petition.
(a) A copy of the petition is served on all other parties.
(b) Interested persons may request intervention by a written motion
to the Board. Such intervention may be granted at the discretion of the
Board.
(c) All other parties may reply to the petition in writing.
(d) Briefs may be filed.
(e) After review of the record, the Board issues a declaratory order
as to whether it will assert jurisdiction over the cases, but it will
not render a decision on the merits at this stage of the cases.
(f) The declaratory Board order will be binding on the parties in
both cases.
PART 102_RULES AND REGULATIONS, SERIES 8--Table of Contents
Subpart A_Definitions
Sec.
102.1 Terms defined in section 2 of the Act.
102.2 Act; Board; Board agent.
102.3 General counsel.
102.4 Region; subregion.
102.5 Regional director; officer-in-charge, regional attorney.
102.6 Administrative law judge; hearing officer.
102.7 State.
102.8 Party.
Subpart B_Procedure Under Section 10(a) to (i) of the Act for the
Prevention of Unfair Labor Practices
Charge
102.9 Who may file; withdrawal and dismissal.
102.10 Where to file.
102.11 Forms; jurat; or declaration.
102.12 Contents.
102.13 [Reserved]
102.14 Service of charge.
Complaint
102.15 When and by whom issued; contents; service.
102.16 Hearing; change of date or place.
102.17 Amendment.
102.18 Withdrawal.
102.19 Appeal to the general counsel from refusal to issue or reissue.
Answer
102.20 Answer to complaint; time for filing; contents; allegations not
denied deemed admitted.
102.21 Where to file; service upon the parties; form.
102.22 Extension of time for filing.
102.23 Amendment.
Motions
102.24 Motions; where to file; contents; service on other parties;
promptness in filing and response; default judgment
procedures; summary judgment procedures.
102.25 Ruling on motions.
102.26 Motions, rulings, and orders part of the record; rulings not to
be appealed directly to the Board without special permission;
requests for special permission to appeal.
102.27 Review of granting of motion to dismiss entire complaint;
reopening of the record.
102.28 Filing of answer or other participation in proceedings not a
waiver of rights.
Intervention
102.29 Intervention; requisites; rulings on motions to intervene.
Witnesses, Depositions, and Subpoenas
102.30 Examination of witnesses; deposition.
102.31 Issuance of subpoenas; petitions to revoke subpoenas; rulings on
claim of privilege against self-incrimination; subpoena
enforcement proceedings; right to inspect and copy data.
102.32 Payment of witness fees and mileage; fees of persons taking
depositions.
Transfer, Consolidation, and Severance
102.33 Transfer of charge and proceeding from region to region;
consolidation of proceedings in same region; severance.
Hearings
102.34 Who shall conduct; to be public unless otherwise ordered.
102.35 Duties and powers of administrative law judges; stipulations of
cases to administrative law judges or to the Board;
[[Page 34]]
assignment and powers of settlement judges.
102.36 Unavailability of administrative law judge.
102.37 Disqualification of administrative law judge.
102.38 Rights of parties.
102.39 Rules of evidence controlling so far as practicable.
102.40 Stipulations of fact admissible.
102.41 Objection to conduct of hearing; how made; objections not waived
by further participation.
102.42 Filings of briefs and proposed findings with the administrative
law judge and oral argument at the hearing.
102.43 Continuance and adjournment.
Administrative Law Judge's Decision and Transfer of Case to the Board
102.45 Administrative law judge's decision; contents; service; transfer
of the case to the Board; contents of record in case.
Exceptions to the Record and Proceedings
102.46 Exceptions, cross-exceptions, briefs, answering briefs; time for
filing; where to file; service on the parties; extension of
time; effect of failure to include matter in exceptions; reply
briefs; oral arguments.
102.47 Filing of motion after transfer of case to Board.
Procedure Before the Board
102.48 Action of the Board upon expiration of time to file exceptions to
the administrative law judge's decision; decisions by the
Board; extraordinary postdecisional motions.
102.49 Modification or setting aside of order of Board before record
filed in court; action thereafter.
102.50 Hearings before Board or member thereof.
102.51 Settlement or adjustment of issues.
Back-Pay Proceedings
102.52 Compliance with Board order; notification of compliance
determination.
102.53 Review by the General Counsel of compliance determination; appeal
to the Board of the General Counsel's decision.
102.54 Initiation of formal compliance proceedings; issuance of
compliance specification and notice of hearing.
102.55 Contents of compliance specification.
102.56 Answer to compliance specification.
102.57 Extension of date of hearing.
102.58 Withdrawal.
102.59 Hearing; posthearing procedure.
Subpart C_Procedure Under Section 9(c) of the Act for the Determination
of Questions Concerning Representation of Employees and for
Clarification of Bargaining Units and for Amendment of Certifications
Under Section 9(b) of the Act
102.60 Petitions.
102.61 Contents of petition for certification; contents of petition for
decertification; contents of petition for clarification of
bargaining unit; contents of petition for amendment of
certification.
102.62 Consent-election agreements.
102.63 Investigation of petition by regional director; notice of
hearing; service of notice; withdrawal of notice.
102.64 Conduct of hearing.
102.65 Motions; interventions.
102.66 Introduction of evidence; rights of parties at hearing;
subpoenas.
102.67 Proceedings before the regional director; further hearing;
briefs; action by the regional director; appeals from action
by the regional director; statement in opposition to appeal;
transfer of case to the Board; proceedings before the Board;
Board action.
102.68 Record; what constitutes; transmission to Board.
102.69 Election procedure; tally of ballots; objections; certification
by the regional director; report on challenged ballots; report
on objections; exceptions; action of the Board; hearing.
102.70 Runoff election.
102.71 Dismissal of petition; refusal to proceed with petition; requests
for review by the Board of action of the regional director.
102.72 Filing petition with general counsel; investigation upon motion
of general counsel; transfer of petition and proceeding from
region to general counsel or to another region; consolidation
of proceedings in same region; severance; procedure before
general counsel in cases over which he has assumed
jurisdiction.
Subpart D_Procedure for Unfair Labor Practice and Representation Cases
Under Sections 8(b)(7) and 9(c) of the Act
102.73 Initiation of proceedings.
102.74 Complaint and formal proceedings.
102.75 Suspension of proceedings on the charge where timely petition is
filed.
102.76 Petition; who may file; where to file; contents.
102.77 Investigation of petition by regional director; directed
election.
[[Page 35]]
102.78 Election procedure; method of conducting balloting; postballoting
procedure.
102.79 Consent-election agreements.
102.80 Dismissal of petition; refusal to process petition under
expedited procedure.
102.81 Review by the general counsel of refusal to proceed on charge;
resumption of proceedings upon charge held during pendency of
petition; review by the general counsel of refusal to proceed
on related charge.
102.82 Transfer, consolidation, and severance.
Subpart E_Procedure for Referendum Under Section 9(e) of the Act
102.83 Petition for referendum under section 9(e)(1) of the Act; who may
file; where to file; withdrawal.
102.84 Contents of petition to rescind authority.
102.85 Investigation of petition by regional director; consent
referendum; directed referendum.
102.86 Hearing; posthearing procedure.
102.87 Method of conducting balloting; postballoting procedure.
102.88 Refusal to conduct referendum; appeal to Board.
Subpart F_Procedure To Hear and Determine Disputes Under Section 10(k)
of the Act
102.89 Initiation of proceedings.
102.90 Notice of filing of charge; notice of hearing; hearing;
proceedings before the Board; briefs; determination of
dispute.
102.91 Compliance with determination; further proceedings.
102.92 Review of determination.
102.93 Alternative procedure.
Subpart G_Procedure in Cases Under Section 10(j), (l), and (m) of the
Act
102.94 Expeditious processing of section 10(j) cases.
102.95 Priority of cases pursuant to section 10(l) and (m) of the Act.
102.96 Issuance of complaint promptly.
102.97 Expeditious processing of section 10 (l) and (m) cases in
successive stages.
Subpart H_Declaratory Orders and Advisory Opinions Regarding Board
Jurisdiction
102.98 Petition for advisory opinion; who may file; where to file.
102.99 Contents of petition for advisory opinion; contents of request
for administrative advice.
102.100 Notice of petition; service of petition.
102.101 Response to petition; service of response.
102.102 Intervention.
102.103 Proceedings before the Board; briefs; advisory opinions.
102.104 Withdrawal of petition.
102.105 Petitions for declaratory orders; who may file; where to file;
withdrawal.
102.106 Contents of petition for declaratory order.
102.107 Notice of petition; service of petition.
102.108 Response to petition; service of response.
102.109 Intervention.
102.110 Proceedings before the Board; briefs; declaratory orders.
Subpart I_Service and Filing of Papers
102.111 Time computation.
102.112 Date of service; date of filing.
102.113 Methods of service of process and papers by the Agency; proof of
service.
102.114 Filing and service of papers by parties; form of papers; manner
and proof of filing or service; electronic filings.
Subpart J_Certification and Signature of Documents
102.115 Certification of papers and documents.
102.116 Signature of orders.
Subpart K_Records and Information
102.117 Board materials and formal documents available for public
inspection and copying; requests for described records; time
limit for response; appeal from denial of request; fees for
document search and duplication; files and records not subject
to inspection.
102.118 Present and former Board employees prohibited from producing
files, records, etc., pursuant to subpoena ad testificandum or
subopena duces tecum; prohibited from testifying in regard
thereto; production of witnesses' statements after direct
testimony.
Subpart L_Post-employment Restrictions on Activities by Former Officers
and Employees
102.119 Post-employee restrictions on activities by former Officers and
employees.
[[Page 36]]
Subpart M_Construction of Rules
102.121 Rules to be liberally construed.
Subpart N_Enforcement of Rights, Privileges, and Immunities Granted or
Guaranteed Under Section 222(f), Communications Act of 1934, as Amended,
to Employees of Merged Telegraph Carriers
102.122 Enforcement.
102.123 Amendment or rescission of rules.
Subpart O_Amendments
102.124 Petitions for issuance, amendment, or repeal of rules.
102.125 Action on petition.
Subpart P_Ex Parte Communications
102.126 Unauthorized communications.
102.127 Definitions.
102.128 Types of on-the-record proceedings; categories of Board agents;
and duration of prohibition.
102.129 Communications prohibited.
102.130 Communications not prohibited.
102.131 Solicitation of prohibited communications.
102.132 Reporting of prohibited communications; penalties.
102.133 Penalties and enforcement.
Subpart Q_Procedure Governing Manners Affecting Employment-Management
Agreements Under the Postal Reorganization Act
102.135 Employment-management agree- ments.
Subpart R_Advisory Committees
102.136 Establishment and utilization of advisory committees.
Subpart S_Open Meetings
102.137 Public observation of Board meetings.
102.138 Definition of meeting.
102.139 Closing of meetings; reasons therefor.
102.140 Action necessary to close meetings; record of votes.
102.141 Notice of meetings; public announcement and publication.
102.142 Transcripts, recordings or minutes of closed meetings; public
availability; retention.
Subpart T_Awards of Fees and Other Expenses
102.143 ``Adversary adjudication'' defined; entitlement to award;
eligibility for award.
102.144 Standards for awards.
102.145 Allowable fees and expenses.
102.146 Rulemaking on maximum rates for attorney or agent fees.
102.147 Contents of application; net worth exhibit; documentation of
fees and expenses.
102.148 When an application may be filed; place of filing; service;
referral to administrative law judge; stay of proceeding.
102.149 Filing of documents; service of documents; motions for extension
of time.
102.150 Answer to application; reply to answer; comments by other
parties.
102.151 Settlement.
102.152 Further proceedings.
102.153 Administrative law judge's decision; contents; service; transfer
of case to the Board; contents of record in case.
102.154 Exceptions to administrative law judge's decision; briefs;
action of Board.
102.155 Payment of award.
Subpart U_Debt-Collection Procedures by Administrative Offset
102.156 Administrative offset; purpose and scope.
102.157 Definitions.
102.158 Agency requests for administrative offsets and cooperation with
other Federal agencies.
102.159 Exclusions.
102.160 Agency responsibilities.
102.161 Notification.
102.162 Examination and copying of records related to the claim;
opportunity for full explanation of the claim.
102.163 Opportunity for repayment.
102.164 Review of the obligation.
102.165 Cost shifting.
102.166 Additional administrative collection action.
102.167 Prior provision of rights with respect to debt.
Subpart V_Debt Collection Procedures by Federal Income Tax Refund Offset
102.168 Federal income tax refund offset; purpose and scope.
102.169 Definitions.
102.170 Agency referral to IRS for tax referral effect; Agency
responsibilities.
102.171 Cost shifting.
102.172 Minimum referral amount.
102.173 Relation to other collection efforts.
102.174 Debtor notification.
102.175 Agency review of the obligation.
102.176 Prior provision of rights with respect to debt.
Subpart W_Misconduct by Attorneys or Party Representatives
102.177 Exclusion from hearings; Refusal of witness to answer questions;
Misconduct
[[Page 37]]
by attorneys and party representatives before the Agency;
Procedures for processing misconduct allegations.
Appendix A to Part 102--NLRB Official Office Hours
Authority: Sec. 6, National Labor Relations Act, as amended (29
U.S.C. 151, 156). Section 102.117 also issued under sec. 552(a)(4)(A) of
the Freedom of Information Act, as amended (5 U.S.C. 552(a)(4)(A)), and
section 552a (j) and (k) of the Privacy Act (5 U.S.C. 552a (j) and (k)).
Sections 102.143 through 102.155 also issued under sec. 504(c)(1) of the
Equal Access to Justice Act as amended (5 U.S.C. 504(c)(1)).
Source: 24 FR 9102, Nov. 7, 1959, unless otherwise noted.
Subpart A_Definitions
Sec. 102.1 Terms defined in section 2 of the Act.
The terms person, employer, employee, representative, labor
organization, commerce, affecting commerce, and unfair labor practice,
as used herein, shall have the meanings set forth in section 2 of the
National Labor Relations Act, as amended by title I of the Labor
Management Relations Act, 1947.
Sec. 102.2 Act; Board; Board agent.
The term Act as used herein shall mean the National Labor Relations
Act, as amended. The term Board shall mean the National Labor Relations
Board and shall include any group of three or more members designated
pursuant to section 3(b) of the Act. The term Board agent shall mean any
member, agent, or agency of the Board, including its general counsel.
Sec. 102.3 General counsel.
The term general counsel as used herein shall mean the general
counsel under section 3(d) of the Act.
Sec. 102.4 Region; subregion.
The term region as used herein shall mean that part of the United
States or any Territory thereof fixed by the Board as a particular
region. The term subregion shall mean that area within a region fixed by
the Board as a particular subregion.
[29 FR 15918, Nov. 28, 1964]
Sec. 102.5 Regional director; officer-in-charge; regional attorney.
The term regional director as used herein shall mean the agent
designated by the Board as the regional director for a particular
region, and shall also include any agent designated by the Board as
officer-in-charge of a subregional office, but the officer-in-charge
shall have only such powers, duties, and functions appertaining to
regional directors as shall have been duly delegated to such officer-in-
charge. The term regional attorney as used herein shall mean the
attorney designated as regional attorney for a particular region.
[29 FR 15919, Nov. 28, 1964]
Sec. 102.6 Administrative law judge; hearing officer.
The term administrative law judge as used herein shall mean the
agent of the Board conducting the hearing in an unfair labor practice or
Telegraph Merger Act proceeding. The term hearing officer as used herein
shall mean the agent of the Board conducting the hearing in a proceeding
under section 9 or in a dispute proceeding under section 10(k) of the
Act.
Sec. 102.7 State.
The term State as used herein shall include the District of Columbia
and all States, Territories, and possessions of the United States.
Sec. 102.8 Party.
The term party as used herein shall mean the regional director in
whose region the proceeding is pending and any person named or admitted
as a party, or properly seeking and entitled as of right to be admitted
as a party, in any Board proceeding, including, without limitation, any
person filing a charge or petition under the act, any person named as
respondent, as employer, or as party to a contract in any proceeding
under the act, and any labor organization alleged to be dominated,
assisted, or supported in violation of section 8(a)(1) or 8(a)(2) of the
Act; but nothing herein shall be construed to prevent the Board or its
designated
[[Page 38]]
agent from limiting any party to participate in the proceedings to the
extent of his interest only.
Subpart B_Procedure Under Section 10 (a) to (i) of the Act for the
Prevention of Unfair Labor Practices \1\
---------------------------------------------------------------------------
\1\ Procedure under sec. 10(j) to (l) of the Act is governed by
subparts F and G of this part. Procedure for unfair labor practice cases
and representation cases under sec. 8(b)(7) of the Act is governed by
subpart D of this part.
---------------------------------------------------------------------------
Charge
Sec. 102.9 Who may file; withdrawal and dismissal.
A charge that any person has engaged in or is engaging in any unfair
labor practice affecting commerce may be made by any person. Any such
charge may be withdrawn, prior to the hearing, only with the consent of
the regional director with whom such charge was filed; at the hearing
and until the case has been transferred to the Board pursuant to Sec.
102.45, upon motion, with the consent of the administrative law judge
designated to conduct the hearing; and after the case has been
transferred to the Board pursuant to Sec. 102.45, upon motion, with the
consent of the Board. Upon withdrawal of any charge, any complaint based
thereon shall be dismissed by the regional director issuing the
complaint, the administrative law judge designated to conduct the
hearing, or the Board.
Sec. 102.10 Where to file.
Except as provided in Sec. 102.33 such charge shall be filed with
the regional director for the region in which the alleged unfair labor
practice has occurred or is occurring. A charge alleging that an unfair
labor practice has occurred or is occurring in two or more regions may
be filed with the regional director for any of such regions.
Sec. 102.11 Forms; jurat; or declaration.
Such charges shall be in writing and signed, and either shall be
sworn to before a notary public, Board agent, or other person duly
authorized by law to administer oaths and take acknowledgments or shall
contain a declaration by the person signing it, under the penalty of
perjury that its contents are true and correct (see 28 U.S.C. Sec.
1746). One original of such charge shall be filed. A party filing a
charge by facsimile pursuant to Sec. 102.114(f) shall also file an
original for the Agency's records, but failure to do so shall not affect
the validity of the filing by facsimile, if otherwise proper.
[67 FR 658, Jan. 7, 2002]
Sec. 102.12 Contents.
Such charge shall contain the following:
(a) The full name and address of the person making the charge.
(b) If the charge is filed by a labor organization, the full name
and address of any national or international labor organization of which
it is an affiliate or constituent unit.
(c) The full name and address of the person against whom the charge
is made (hereinafter referred to as the ``respondent'').
(d) A clear and concise statement of the facts constituting the
alleged unfair labor practices affecting commerce.
Sec. 102.13 [Reserved]
Sec. 102.14 Service of charge.
(a) Charging party's obligation to serve; methods of service. Upon
the filing of a charge, the charging party shall be responsible for the
timely and proper service of a copy thereof upon the person against whom
such charge is made. Service may be made personally, or by registered
mail, certified mail, regular mail, or private delivery service. With
the permission of the person receiving the charge, service may be made
by facsimile transmission or by any other agreed-upon method.
(b) Service as courtesy by Regional Director. The Regional Director
will, as a matter of courtesy, cause a copy of such charge to be served
by regular mail on the person against whom the charge is made. Such
charges may, with the permission of the person receiving the charge, be
served by the Regional Director by facsimile transmission. In this event
the receipt printed upon the Agency's copy by the
[[Page 39]]
Agency's own facsimile machine, showing the phone number to which the
charge was transmitted and the date and time of receipt shall be proof
of service of the same. However, whether serving by facsimile, by
regular mail, or otherwise, the Regional Director shall not be deemed to
assume responsibility for such service.
(c) Date of service of charge. In the case of service of a charge by
mail or private delivery service, the date of service is the date of
deposit with the post office or other carrier. In the case of service by
other methods, including hand delivery or facsimile transmission, the
date of service is the date of receipt.
[60 FR 56235, Nov. 8, 1995]
Complaint
Sec. 102.15 When and by whom issued; contents; service.
After a charge has been filed, if it appears to the regional
director that formal proceedings in respect thereto should be
instituted, he shall issue and cause to be served on all other parties a
formal complaint in the name of the Board stating the unfair labor
practices and containing a notice of hearing before an administrative
law judge at a place therein fixed and at a time not less than 14 days
after the service of the complaint. The complaint shall contain:
(a) A clear and concise statement of the facts upon which assertion
of jurisdiction by the Board is predicated, and
(b) A clear and concise description of the acts which are claimed to
constitute unfair labor practices, where known, the approximate dates
and places of such acts and the names of respondent's agents or other
representatives by whom committed.
[51 FR 23745, July 1, 1986]
Sec. 102.16 Hearing; change of date or place.
(a) Upon his own motion or upon proper cause shown by any other
party, the Regional Director issuing the complaint may extend the date
of such hearing or may change the place at which it is to be held,
except that the authority of the Regional Director to extend the date of
a hearing shall be limited to the following circumstances:
(1) Where all parties agree or no party objects to extension of the
date of hearing;
(2) Where a new charge or charges have been filed which, if
meritorious, might be appropriate for consolidation with the pending
complaint;
(3) Where negotiations which could lead to settlement of all or a
portion of the complaint are in progress;
(4) Where issues related to the complaint are pending before the
General Counsel's Division of Advice or Office of Appeals; or
(5) Where more than 21 days remain before the scheduled date of
hearing.
(b) In circumstances other than those set forth in subsection (a) of
this section, motions to reschedule the hearing should be filed with the
Division of Judges in accordance with Sec. 102.24(a). When a motion to
reschedule has been granted, the Regional Director issuing the complaint
shall retain the authority to order a new date for hearing and retain
the responsibility to make the necessary arrangements for conducting
such hearing, including its location and the transcription of the
proceedings.
[54 FR 51197, Dec. 13, 1989; 54 FR 52506, Dec. 21, 1989]
Sec. 102.17 Amendment.
Any such complaint may be amended upon such terms as may be deemed
just, prior to the hearing, by the regional director issuing the
complaint; at the hearing and until the case has been transferred to the
Board pursuant to Sec. 102.45, upon motion, by the administrative law
judge designated to conduct the hearing; and after the case has been
transferred to the Board pursuant to Sec. 102.45, at any time prior to
the issuance of an order based thereon, upon motion, by the Board.
Sec. 102.18 Withdrawal.
Any such complaint may be withdrawn before the hearing by the
regional director on his own motion.
Sec. 102.19 Appeal to the general counsel from refusal to issue or
reissue.
(a) If, after the charge has been filed, the Regional Director
declines to issue
[[Page 40]]
a complaint or, having withdrawn a complaint pursuant to Sec. 102.18,
refuses to reissue it, he shall so advise the parties in writing,
accompanied by a simple statement of the procedural or other grounds for
his action. The person making the charge may obtain a review of such
action by filing the ``Appeal Form'' with the General Counsel in
Washington, DC, and filing a copy of the ``Appeal Form'' with the
Regional Director, within 14 days from the service of the notice of such
refusal to issue or reissue by the Regional Director, except as a
shorter period is provided by Sec. 102.81. If an appeal is taken the
person doing so should notify all other parties of his action, but any
failure to give such notice shall not affect the validity of the appeal.
The person may also file a statement setting forth the facts and reasons
upon which the appeal is based. If such a statement is timely filed, the
separate ``Appeal Form'' need not be served. A request for extension of
time to file an appeal shall be in writing and be received by the office
of General Counsel, and a copy of such request filed with the Regional
Director, prior to the expiration of the filing period. Copies of the
acknowledgement of the filing of an appeal and of any ruling on a
request for an extension of time for filing the appeal shall be served
on all parties. Consideration of an appeal untimely filed is within the
discretion of the General Counsel upon good cause shown.
(b) Oral presentation in Washington, DC, of the appeal issues may be
permitted a party on written request made within 4 days after service of
acknowledgment of the filing of an appeal. In the event such request is
granted, the other parties shall be notified and afforded, without
additional request, a like opportunity at another appropriate time.
(c) The general counsel may sustain the regional director's refusal
to issue or reissue a complaint, stating the grounds of his affirmance,
or may direct the regional director to take further action; the general
counsel's decision shall be served on all the parties. A motion for
reconsideration of the decision must be filed within 14 days of service
of the decision, except as hereinafter provided, and shall state with
particularity the error requiring reconsideration. A motion for
reconsideration based upon newly discovered evidence which has become
available only since the decision on appeal shall be filed promptly on
discovery of such evidence. Motions for reconsideration of a decision
previously reconsidered will not be entertained, except in unusual
situations where the moving party can establish that new evidence has
been discovered which could not have been discovered by diligent inquiry
prior to the first reconsideration.
[32 FR 9548, July 1, 1967, as amended at 51 FR 23746, July 1, 1986; 68
FR 39837, July 3, 2003]
Answer
Sec. 102.20 Answer to complaint; time for filing; contents; allegations
not denied deemed admitted.
The respondent shall, within 14 days from the service of the
complaint, file an answer thereto. The respondent shall specifically
admit, deny, or explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in which case the respondent
shall so state, such statement operating as a denial. All allegations in
the complaint, if no answer is filed, or any allegation in the complaint
not specifically denied or explained in an answer filed, unless the
respondent shall state in the answer that he is without knowledge, shall
be deemed to be admitted to be true and shall be so found by the Board,
unless good cause to the contrary is shown.
[51 FR 23746, July 1, 1986]
Sec. 102.21 Where to file; service upon the parties; form.
An original and four copies of the answer shall be filed with the
Regional Director issuing the complaint. Immediately upon the filing of
his answer, respondent shall serve a copy thereof on the other parties.
An answer of a party represented by counsel or non-attorney
representative shall be signed by at least one such attorney or non-
attorney representative of record in his/her individual name, whose
address shall be stated. A party who is not represented by an attorney
or non-attorney representative shall sign his/her
[[Page 41]]
answer and state his/her address. Except when otherwise specifically
provided by rule or statute, an answer need not be verified or
accompanied by affidavit. The signature of the attorney or non-attorney
party representative constitutes a certificate by him/her that he/she
has read the answer; that to the best of his/her knowledge, information,
and belief there is good ground to support it; and that it is not
interposed for delay. If an answer is not signed or is signed with
intent to defeat the purpose of this section, it may be stricken as sham
and false and the action may proceed as though the answer had not been
served. For a willful violation of this section an attorney or non-
attorney party representative may be subjected to appropriate
disciplinary action. Similar action may be taken if scandalous or
indecent matter is inserted.
[61 FR 65331, Dec. 12, 1996]
Sec. 102.22 Extension of time for filing.
Upon his own motion or upon proper cause shown by any other party
the regional director issuing the complaint may by written order extend
the time within which the answer shall be filed.
Sec. 102.23 Amendment.
The respondent may amend his answer at any time prior to the
hearing. During the hearing or subsequent thereto, he may amend his
answer in any case where the complaint has been amended, within such
period as may be fixed by the administrative law judge or the Board.
Whether or not the complaint has been amended, the answer may, in the
discretion of the administrative law judge or the Board, upon motion, be
amended upon such terms and within such periods as may be fixed by the
administrative law judge or the Board.
Motions
(49 Stat. 449; 29 U.S.C. 151-166, as amended by (61 Stat. 136; 29 U.S.C.
Sup. 151-167), (65 Stat. 601; 29 U.S.C. 158, 159, 168), (73 Stat. 519;
29 U.S.C. 141-168), (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))
Sec. 102.24 Motions; where to file; contents; service on other parties;
promptness in filing and response; default judgment procedures; summary
judgment procedures.
(a) All motions under Sec. Sec. 102.22 and 102.29 made prior to the
hearing shall be filed in writing with the Regional Director issuing the
complaint. All motions for default judgment, summary judgment, or
dismissal made prior to the hearing shall be filed in writing with the
Board pursuant to the provisions of Sec. 102.50. All other motions made
prior to the hearing, including motions to reschedule the hearing under
circumstances other than those set forth in Sec. 102.16(a), shall be
filed in writing with the chief administrative law judge in Washington,
DC, with the associate chief judge in San Francisco, California, with
the associate chief judge in New York, New York, or with the associate
chief judge in Atlanta, Georgia, as the case may be. All motions made at
the hearing shall be made in writing to the administrative law judge or
stated orally on the record. All motions filed subsequent to the
hearing, but before the transfer of the case to the Board pursuant to
Sec. 102.45, shall be filed with the administrative law judge, care of
the chief administrative law judge in Washington, DC, the deputy chief
judge in San Francisco, California, the associate chief judge in New
York, New York, or the associate chief judge in Atlanta, Georgia, as the
case may be. Motions shall briefly state the order or relief applied for
and the grounds therefor. All motions filed with a Regional Director or
an administrative law judge as set forth in this paragraph shall be
filed therewith by transmitting three copies thereof together with an
affidavit of service on the parties. All motions filed with the Board,
including motions for default judgment, summary judgment, or dismissal,
shall be filed with the Executive Secretary of the Board in Washington,
DC, by transmitting eight copies thereof together with an affidavit of
service on the parties. Unless otherwise provided in 29 CFR part 102,
motions and responses thereto shall be filed promptly and within such
time as not to delay the proceeding.
[[Page 42]]
(b) All motions for summary judgment or dismissal shall be filed
with the Board no later than 28 days prior to the scheduled hearing.
Where no hearing is scheduled, or where the hearing is scheduled less
than 28 days after the date for filing an answer to the complaint or
compliance specification, whichever is applicable, the motion shall be
filed promptly. Upon receipt of a motion for default judgment, summary
judgment, or dismissal, the Board may deny the motion or issue a notice
to show cause why the motion should not be granted. If a notice to show
cause is issued, the hearing, if scheduled, will normally be postponed
indefinitely. If a party desires to file an opposition to the motion
prior to issuance of the notice to show cause in order to prevent
postponement of the hearing, it may do so; Provided however, That any
such opposition shall be filed no later than 21 days prior to the
hearing. If a notice to show cause is issued, an opposing party may file
a response thereto notwithstanding any opposition it may have filed
prior to issuance of the notice. The time for filing the response shall
be fixed in the notice to show cause. It is not required that either the
opposition or the response be supported by affidavits or other
documentary evidence showing that there is a genuine issue for hearing.
The Board in its discretion may deny the motion where the motion itself
fails to establish the absence of a genuine issue, or where the opposing
party's pleadings, opposition and/or response indicate on their face
that a genuine issue may exist. If the opposing party files no
opposition or response, the Board may treat the motion as conceded, and
default judgment, summary judgment, or dismissal, if appropriate, shall
be entered.
[69 FR 1676, Jan. 12, 2004]
Sec. 102.25 Ruling on motions.
An administrative law judge designated by the chief administrative
law judge, by the associate chief judge in San Francisco, California, by
the associate chief judge in New York, New York, or by the associate
chief judge in Atlanta, Georgia, as the case may be, shall rule on all
prehearing motions (except as provided in Sec. Sec. 102.16, 102.22,
102.29, and 102.50), and all such rulings and orders shall be issued in
writing and a copy served on each of the parties. The administrative law
judge designated to conduct the hearing shall rule on all motions after
opening of the hearing (except as provided in Sec. 102.47), and any
orders in connection therewith, if announced at the hearing, shall be
stated orally on the record; in all other cases the administrative law
judge shall issue such rulings and orders in writing and shall cause a
copy of the same to be served on each of the parties, or shall make his
ruling in his decision. Whenever the administrative law judge has
reserved his ruling on any motion, and the proceeding is thereafter
transferred to and continued before the Board pursuant to Sec. 102.50,
the Board shall rule on such motion.
(49 Stat. 449; 29 U.S.C. 151-166, as amended by (61 Stat. 136; 29 U.S.C.
Sup. 151-167), (65 Stat. 601; 29 U.S.C. 158, 159, 168), (73 Stat. 519;
29 U.S.C. 141-168), (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))
[45 FR 51193, Aug. 1, 1980, as amended at 62 FR 1668, Jan. 13, 1997]
Sec. 102.26 Motions, rulings, and orders part of the record; rulings
not to be appealed directly to the Board without special permission;
requests for special permission to appeal.
All motions, rulings, and orders shall become a part of the record,
except that rulings on motions to revoke subpoenas shall become a part
of the record only upon the request of the party aggrieved thereby as
provided in Sec. 102.31. Unless expressly authorized by the Rules and
Regulations, rulings by the regional director or by the administrative
law judge on motions and/or by the administrative law judge on
objections, and orders in connection therewith, shall not be appealed
directly to the Board except by special permission of the Board, but
shall be considered by the Board in reviewing the record if exception to
the ruling or order is included in the statement of exceptions filed
with the Board pursuant to Sec. 102.46. Requests to the Board for
special permission to appeal from a ruling of the regional director or
of the administrative law judge, together with the appeal from such
ruling, shall
[[Page 43]]
be filed promptly, in writing, and shall briefly state the reasons
special permission should be granted and the grounds relied on for the
appeal. The moving party shall immediately serve a copy of the request
for special permission and of the appeal on the other parties and, if
the request involves a ruling by an administrative law judge, on the
administrative law judge. Any statement in opposition or other response
to the request and/or to the appeal shall be filed promptly, in writing,
and shall be served immediately on the other parties and on the
administrative law judge, if any. If the Board grants the request for
special permission to appeal, it may proceed forthwith to rule on the
appeal.
[47 FR 40770, Sept. 15, 1982]
Sec. 102.27 Review of granting of motion to dismiss entire complaint;
reopening of the record.
If any motion in the nature of a motion to dismiss the complaint in
its entirety is granted by the administrative law judge before filing
his decision, any party may obtain a review of such action by filing a
request therefor with the Board in Washington, DC, stating the grounds
for review, and immediately on such filing shall serve a copy thereof on
the regional director and on the other parties. Unless such request for
review is filed within 28 days from the date of the order of dismissal,
the case shall be closed.
[51 FR 23746, July 1, 1986]
Sec. 102.28 Filing of answer or other participation in proceedings not
a waiver of rights.
The right to make motions or to make objections to rulings upon
motions shall not be deemed waived by the filing of an answer or by
other participation in the proceedings before the administrative law
judge or the Board.
[45 FR 51192, Aug. 1, 1980]
Intervention
Sec. 102.29 Intervention; requisites; rulings on motions to intervene.
Any person desiring to intervene in any proceeding shall file a
motion in writing or, if made at the hearing, may move orally on the
record, stating the grounds upon which such person claims an interest.
Prior to the hearing, such a motion shall be filed with the regional
director issuing the complaint; during the hearing such motion shall be
made to the administrative law judge. An original and four copies of
written motions shall be filed. Immediately upon filing such motion, the
moving party shall serve a copy thereof upon each of the other parties.
The regional director shall rule upon all such motions filed prior to
the hearing, and shall cause a copy of said rulings to be served upon
each of the other parties, or may refer the motion to the administrative
law judge for ruling. The administrative law judge shall rule upon all
such motions made at the hearing or referred to him by the regional
director, in the manner set forth in Sec. 102.25. The regional director
or the administrative law judge, as the case may be, may by order permit
intervention in person or by counsel or other representative to such
extent and upon such terms as he may deem proper.
Witnesses, Depositions, and Subpoenas
Sec. 102.30 Examination of witnesses; deposition.
Witnesses shall be examined orally under oath, except that for good
cause shown after the issuance of a complaint, testimony may be taken by
deposition.
(a) Applications to take depositions shall be in writing setting
forth the reasons why such depositions should be taken, the name and
post office address of the witness, the matters concerning which it is
expected the witness will testify, and the time and place proposed for
the taking of the deposition, together with the name and address of the
person before whom it is desired that the deposition be taken (for the
purposes of this section hereinafter referred to as the ``officer'').
Such application shall be made to the regional director prior to the
hearing, and to the administrative law judge during and subsequent to
the hearing but before transfer of the case to the Board pursuant to
Sec. 102.45 or Sec. 102.50. Such application shall be served upon the
regional
[[Page 44]]
director or the administrative law judge, as the case may be, and upon
all other parties, not less than 7 days (when the deposition is to be
taken within the continental United States) and 15 days (if the
deposition is to be taken elsewhere) prior to the time when it is
desired that the deposition be taken. The regional director or
administrative law judge, as the case may be, shall upon receipt of the
application, if in his discretion good cause has been shown, make and
serve upon the parties an order which will specify the name of the
witness whose deposition is to be taken and the time, the place, and the
designation of the officer before whom the witness is to testify, who
may or may not be the same officer as that specified in the application.
Such order shall be served upon all the other parties by the regional
director or upon all parties by the administrative law judge.
(b) Such deposition may be taken before any officer authorized to
administer oaths by the laws of the United States or of the place where
the examination is held, including any agent of the Board authorized to
administer oaths. If the examination is held in a foreign country, it
may be taken before any secretary of embassy or legation, consul
general, consul, vice consul, or consular agent of the United States.
(c) At the time and place specified in said order the officer
designated to take such deposition shall permit the witness to be
examined and cross-examined under oath by all the parties appearing, and
his testimony shall be reduced to typewriting by the officer or under
his direction. All objections to questions or evidence shall be deemed
waived unless made at the examination. The officer shall not have power
to rule upon any objections but he shall note them upon the deposition.
The testimony shall be subscribed by the witness in the presence of the
officer who shall attach his certificate stating that the witness was
duly sworn by him, that the deposition is a true record of the testimony
and exhibits given by the witness, and that said officer is not of
counsel or attorney to any of the parties nor interested in the event of
the proceeding or investigation. If the deposition is not signed by the
witness because he is ill, dead, cannot be found, or refuses to sign it,
such fact shall be included in the certificate of the officer and the
deposition may then be used as fully as though signed. The officer shall
immediately deliver an original and two copies of said transcript,
together with his certificate, in person or by registered or certified
mail to the regional director or the administrative law judge, care of
the chief administrative law judge in Washington, DC, the associate
chief judge, in San Francisco, California, the associate chief judge in
New York, New York, or the associate chief judge in Atlanta, Georgia, as
the case may be.
(d) The administrative law judge shall rule upon the admissibility
of the deposition or any part thereof.
(e) All errors or irregularities in compliance with the provisions
of this section shall be deemed waived unless a motion to suppress the
deposition or some part thereof is made with reasonable promptness after
such defect is or, with due diligence, might have been ascertained.
(f) If the parties so stipulate in writing, depositions may be taken
before any person at any time or place, upon any notice and in any
manner, and when so taken may be used like other depositions.
(National Labor Relations Act approved July 5, 1935, 49 Stat. 449; 29
U.S.C. 151-166, as amended by Act of June 23, 1947 (61 Stat. 136; 29
U.S.C. Sup. 151-167), Act of Oct. 22, 1951 (65 Stat. 601; 29 U.S.C. 158,
159, 168), Act of Sept. 14, 1959 (73 Stat. 519; 29 U.S.C. 141-168), and
Act of July 26, 1974 (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))
[24 FR 9102, Nov. 7, 1959, as amended at 45 FR 37425, June 3, 1980; 45
FR 51193, Aug. 1, 1980; 62 FR 1668, Jan. 13, 1997]
Sec. 102.31 Issuance of subpoenas; petitions to revoke subpoenas;
rulings on claim of privilege against self-incrimination; subpoena
enforcement proceedings; right to inspect and copy data.
(a) The Board, or any Member thereof, shall, on the written
application of any party, forthwith issue subpoenas requiring the
attendance and testimony of witnesses and the production of any
evidence, including books, records, correspondence, or documents,
[[Page 45]]
in their possession or under their control. The Executive Secretary
shall have the authority to sign and issue any such subpoenas on behalf
of the Board or any Member thereof. Applications for subpoenas, if filed
prior to the hearing, shall be filed with the Regional Director.
Applications for subpoenas filed during the hearing shall be filed with
the administrative law judge. Either the Regional Director or the
administrative law judge, as the case may be, shall grant the
application on behalf of the Board or any Member thereof. Applications
for subpoenas may be made ex parte. The subpoena shall show on its face
the name and address of the party at whose request the subpoena was
issued.
(b) Any person served with a subpoena, whether ad testificandum or
duces tecum, if he or she does not intend to comply with the subpoena,
shall, within 5 days after the date of service of the subpoena, petition
in writing to revoke the subpoena. The date of service for purposes of
computing the time for filing a petition to revoke shall be the date the
subpoena is received. All petitions to revoke subpoenas shall be served
upon the party at whose request the subpoena was issued. Such petition
to revoke, if made prior to the hearing, shall be filed with the
regional director and the regional director shall refer the petition to
the administrative law judge or the Board for ruling. Petitions to
revoke subpoenas filed during the hearing shall be filed with the
administrative law judge. Notice of the filing of petitions to revoke
shall be promptly given by the regional director or the administrative
law judge, as the case may be, to the party at whose request the
subpoena was issued. The administrative law judge or the Board, as the
case may be, shall revoke the subpoena if in its opinion the evidence
whose production is required does not relate to any matter under
investigation or in question in the proceedings or the subpoena does not
describe with sufficient particularity the evidence whose production is
required, or if for any other reason sufficient in law the subpoena is
otherwise invalid. The administrative law judge or the Board, as the
case may be, shall make a simple statement of procedural or other
grounds for the ruling on the petition to revoke. The petition to
revoke, any answer filed thereto, and any ruling thereon shall not
become part of the official record except upon the request of the party
aggrieved by the ruling.
(c) With the approval of the Attorney General of the United States,
the Board may issue an order requiring any individual to give testimony
or provide other information at any proceeding before the Board if, in
the judgment of the Board, (1) the testimony or other information from
such individual may be necessary to the public interest, and (2) such
individual has refused or is likely to refuse to testify or provide
other information on the basis of his privilege against
selfincrimination. Requests for the issuance of such an order by the
Board may be made by any party. Prior to hearing, and after transfer of
the proceeding to the Board, such requests shall be made to the Board in
Washington, DC, and the Board shall take such action thereon as it deems
appropriate. During the hearing, and thereafter while the proceeding is
pending before the administrative law judge, such requests shall be made
to the administrative law judge. If the administrative law judge denies
the request, his ruling shall be subject to appeal to the Board in
Washington, DC, in the manner and to the extent provided in Sec. 102.26
with respect to rulings and orders by an administrative law judge,
except that requests for permission to appeal in this instance shall be
filed within 24 hours of the administrative law judge's ruling. If no
appeal is sought within such time, or the appeal is denied, the ruling
of the administrative law judge shall become final and his denial shall
become the ruling of the Board. If the administrative law judge deems
the request appropriate, he shall recommend that the Board seek the
approval of the Attorney General for the issuance of the order, and the
Board shall take such action on the administrative law judge's
recommendation as it deems appropriate. Until the Board has issued the
requested order no individual who
[[Page 46]]
claims the privilege against self-incrimination shall be required, or
permitted, to testify or to give other information respecting the
subject matter of the claim.
(d) Upon the failure of any person to comply with a subpoena issued
upon the request of a private party, the general counsel shall, in the
name of the Board but on relation of such private party, institute
proceedings in the appropriate district court for the enforcement
thereof, unless in the judgment of the Board the enforcement of such
subpoena would be inconsistent with law and with the policies of the
act. Neither the general counsel nor the Board shall be deemed thereby
to have assumed responsibility for the effective prosecution of the same
before the court.
(e) Persons compelled to submit data or evidence at a public
proceeding are entitled to retain or, on payment of lawfully prescribed
costs, to procure copies or transcripts of the data or evidence
submitted by them. Persons compelled to submit data or evidence in the
nonpublic investigative stages of proceedings may, for good cause, be
limited by the regional director to inspection of the official
transcript of their testimony, but shall be entitled to make copies of
documentary evidence or exhibits which they have produced.
[24 FR 9102, Nov. 7, 1959, as amended at 35 FR 18797, Dec. 11, 1970; 62
FR 9931, Mar. 5, 1997]
Sec. 102.32 Payment of witness fees and mileage; fees of persons taking
depositions.
Witnesses summoned before the trial examiner shall be paid the same
fees and mileage that are paid witnesses in the courts of the United
States, and witnesses whose depositions are taken and the persons taking
the same shall severally be entitled to the same fees as are paid for
like services in the courts of the United States. Witness fees and
mileage shall be paid by the party at whose instance the witnesses
appear and the person taking the deposition shall be paid by the party
at whose instance the deposition is taken.
Transfer, Consolidation, and Severance
Sec. 102.33 Transfer of charge and proceeding from region to region;
consolidation of proceedings in same region; severance.
(a) Whenever the general counsel deems it necessary in order to
effectuate the purposes of the Act or to avoid unnecessary costs or
delay, he may permit a charge to be filed with him in Washington, DC, or
may, at any time after a charge has been filed with a regional director
pursuant to Sec. 102.10, order that such charge and any proceeding
which may have been initiated with respect thereto:
(1) Be transferred to and continued before him for the purpose of
investigation or consolidation with any other proceeding which may have
been instituted in a regional office or with him; or
(2) Be consolidated with any other proceeding which may have been
instituted in the same region; or
(3) Be transferred to and continued in any other region for the
purpose of investigation or consolidation with any proceeding which may
have been instituted in or transferred to such other region; or
(4) Be severed from any other proceeding with which it may have been
consolidated pursuant to this section.
(b) The provisions of Sec. Sec. 102.9 to 102.32, inclusive, shall,
insofar as applicable, govern proceedings before the general counsel
pursuant to this section, and the powers granted to regional directors
in such provisions shall, for the purpose of this section, be reserved
to and exercised by the general counsel. After the transfer of any
charge and any proceeding which may have been instituted with respect
thereto from one region to another pursuant to this section, the
provisions of this subpart shall, insofar as applicable, govern such
charge and such proceeding as if the charge had originally been filed in
the region to which the transfer is made.
(c) The regional director may, prior to hearing, exercise the powers
in paragraph (a)(2) and (4) of this section with respect to proceedings
pending in his region.
[[Page 47]]
(d) Motions to consolidate or sever proceedings after issuance of
complaint shall be filed as provided in Sec. 102.24 and ruled upon as
provided in Sec. 102.25, except that the regional director may
consolidate or sever proceedings prior to hearing upon his own motion.
Rulings by the administrative law judge upon motions to consolidate or
sever may be appealed to the Board as provided in Sec. 102.26.
[32 FR 9549, July 1, 1967, as amended at 36 FR 9132, May 20, 1971]
Hearings
Sec. 102.34 Who shall conduct; to be public unless otherwise ordered.
The hearing for the purpose of taking evidence upon a complaint
shall be conducted by an administrative law judge designated by the
chief administrative law judge in Washington, DC, or by the associate
chief judge, San Francisco, California, by the associate chief judge in
New York, New York, or by the associate chief judge in Atlanta, Georgia,
as the case may be, unless the Board or any member thereof presides. At
any time an administrative law judge may be designated to take the place
of the administrative law judge previously designated to conduct the
hearing. Such hearing shall be public unless otherwise ordered by the
Board or the administrative law judge.
(49 Stat. 449; 29 U.S.C. 151-166, as amended by (61 Stat. 136; 29 U.S.C.
Sup. 151-167), (65 Stat. 601; 29 U.S.C. 158, 159, 168), (73 Stat. 519;
29 U.S.C. 141-168), (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))
[45 FR 51193, Aug. 1, 1980, as amended at 62 FR 1668, Jan. 13, 1997]
Sec. 102.35 Duties and powers of administrative law judges; stipulations
of cases to administrative law judges or to the Board; assignment and powers
of settlement judges.
(a) It shall be the duty of the administrative law judge to inquire
fully into the facts as to whether the respondent has engaged in or is
engaging in an unfair labor practice affecting commerce as set forth in
the complaint or amended complaint. The administrative law judge shall
have authority, with respect to cases assigned to him, between the time
he is designated and transfer of the case to the Board, subject to the
Rules and Regulations of the Board and within its powers:
(1) To administer oaths and affirmations;
(2) To grant applications for subpoenas;
(3) To rule upon petitions to revoke subpoenas;
(4) To rule upon offers of proof and receive relevant evidence;
(5) To take or cause depositions to be taken whenever the ends of
justice would be served thereby;
(6) To regulate the course of the hearing and, if appropriate or
necessary, to exclude persons or counsel from the hearing for
contemptuous conduct and to strike all related testimony of witnesses
refusing to answer any proper question;
(7) To hold conferences for the settlement or simplification of the
issues by consent of the parties, but not to adjust cases;
(8) To dispose of procedural requests, motions, or similar matters,
including motions referred to the administrative law judge by the
Regional Director and motions for default judgment, summary judgment, or
to amend pleadings; also to dismiss complaints or portions thereof; to
order hearings reopened; and upon motion order proceedings consolidated
or severed prior to issuance of administrative law judge decisions;
(9) To approve stipulations, including stipulations of facts that
waive a hearing and provide for a decision by the administrative law
judge. Alternatively, the parties may agree to waive a hearing and
decision by an administrative law judge and submit directly to the
Executive Secretary a stipulation of facts, which, if approved, provides
for a decision by the Board. A statement of the issues presented should
be set forth in the stipulation of facts and each party should also
submit a short statement (no more than three pages) of its position on
the issues. If the administrative law judge (or the Board) approves the
stipulation, the administrative law judge (or the Board) will set a time
for the filing of briefs. In proceedings before an administrative law
judge, no further briefs shall be filed except by special leave of
[[Page 48]]
the administrative law judge. In proceedings before the Board, answering
briefs may be filed within 14 days, or such further period as the Board
may allow, from the last date on which an initial brief may be filed. No
further briefs shall be filed except by special leave of the Board. At
the conclusion of the briefing schedule, the judge (or the Board) will
decide the case or make other disposition of it.
(10) To make and file decisions, including bench decisions delivered
within 72 hours after conclusion of oral argument, in conformity with
Public Law 89-554, 5 U.S.C. 557;
(11) To call, examine, and cross-examine witnesses and to introduce
into the record documentary or other evidence;
(12) To request the parties at any time during the hearing to state
their respective positions concerning any issue in the case or theory in
support thereof;
(13) To take any other action necessary under the foregoing and
authorized by the published Rules and Regulations of the Board.
(b) Upon the request of any party or the judge assigned to hear a
case, or on his or her own motion, the chief administrative law judge in
Washington, D.C., the associate chief judge in San Francisco,
California, the associate chief judge in Atlanta, Georgia, or the
associate chief judge in New York, New York may assign a judge who shall
be other than the trial judge to conduct settlement negotiations. In
exercising his or her discretion, the chief or associate chief judge
making the assignment will consider, among other factors, whether there
is reason to believe that resolution of the dispute is likely, the
request for assignment of a settlement judge is made in good faith, and
the assignment is otherwise feasible. Provided, however, that no such
assignment shall be made absent the agreement of all parties to the use
of this procedure.
(1) The settlement judge shall convene and preside over conferences
and settlement negotiations between the parties, assess the
practicalities of a potential settlement, and report to the chief or
associate the status of settlement negotiations, recommending
continuation or termination of the settlement negotiations. Where
feasible settlement conferences shall be held in person.
(2) The settlement judge may require that the attorney or other
representative for each party be present at settlement conferences and
that the parties or agents with full settlement authority also be
present or available by telephone.
(3) Participation of the settlement judge shall terminate upon the
order of the chief or associates issued after consultation with the
settlement judge. The conduct of settlement negotiations shall not
unduly delay the hearing.
(4) All discussions between the parties and the settlement judge
shall be confidential. The settlement judge shall not discuss any aspect
of the case with the trial judge, and no evidence regarding statements,
conduct, offers of settlement, and concessions of the parties made in
proceedings before the settlement judge shall be admissible in any
proceeding before the Board, except by stipulation of the parties.
Documents disclosed in the settlement process may not be used in
litigation unless voluntarily produced or obtained pursuant to subpoena.
(5) No decision of a chief or associate concerning the assignment of
a settlement judge or the termination of a settlement judge's assignment
shall be appealable to the Board.
(6) Any settlement reached under the auspices of a settlement judge
shall be subject to approval in accordance with the provisions of Sec.
101.9 of the Board's Statements of Procedure.
[61 FR 6941, Feb. 23, 1996, as amended at 62 FR 1668, Jan. 13, 1997; 67
FR 656, Jan. 7, 2002; 69 FR 1677, Jan. 12, 2004]
Sec. 102.36 Unavailability of administrative law judge.
In the event the administrative law judge designated to conduct the
hearing becomes unavailable to the Board after the hearing has been
opened, the chief administrative law judge, in Washington, DC, the
associate chief judge, in San Francisco, California, the associate chief
judge in New York, New York, or the associate chief judge in Atlanta,
Georgia, as the case may be, may designate another administrative
[[Page 49]]
law judge for the purpose of further hearing or other appropriate
action.
(49 Stat. 449; 29 U.S.C. 151-166, as amended by (61 Stat. 136; 29 U.S.C.
Sup. 151-167), (65 Stat. 601; 29 U.S.C. 158, 159, 168), (73 Stat. 519;
29 U.S.C. 141-168), (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))
[45 FR 51193, Aug. 1, 1980, as amended at 62 FR 1668, Jan. 13, 1997]
Sec. 102.37 Disqualification of administrative law judge.
An administrative law judge may withdraw from a proceeding whenever
he deems himself disqualified. Any party may request the administrative
law judge, at any time following his designation and before filing of
his decision, to withdraw on ground of personal bias or
disqualification, by filing with him promptly upon the discovery of the
alleged facts a timely affidavit setting forth in detail the matters
alleged to constituate grounds for disqualification. If, in the opinion
of the administrative law judge, such affidavit is filed with due
diligence and is sufficient on its face, he shall forthwith disqualify
himself and withdraw from the proceeding. If the administrative law
judge does not disqualify himself and withdraw from the proceeding, he
shall so rule upon the record, stating the grounds for his ruling and
proceed with the hearing, or, if the hearing has closed, he shall
proceed with issuance of his decision, and the provisions of Sec.
102.26, with respect to review of rulings of administrative law judges,
shall thereupon apply.
(49 Stat. 449; 29 U.S.C. 151-166, as amended by (61 Stat. 136; 29 U.S.C.
Sup. 151-167), (65 Stat. 601; 29 U.S.C. 158, 159, 168), (73 Stat. 519;
29 U.S.C. 141-168), (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))
[45 FR 51193, Aug. 1, 1980]
Sec. 102.38 Rights of parties.
Any party shall have the right to appear at such hearing in person,
by counsel, or by other representative, to call, examine, and cross-
examine witnesses, and to introduce into the record documentary or other
evidence, except that the participation of any party shall be limited to
the extent permitted by the administrative law judge: And provided
further, That documentary evidence shall be submitted in duplicate.
Sec. 102.39 Rules of evidence controlling so far as practicable.
Any such proceeding shall, so far as practicable, be conducted in
accordance with the rules of evidence applicable in the district courts
of the United States under the rules of civil procedure for the district
courts of the United States, adopted by the Supreme Court of the United
States pursuant to the Act of June 19, 1934, (title 28 U.S.C., secs.
723-B, 723-C).
Sec. 102.40 Stipulations of fact admissible.
In any such proceeding stipulations of fact may be introduced in
evidence with respect to any issue.
Sec. 102.41 Objection to conduct of hearing; how made; objections not
waived by further participation.
Any objection with respect to the conduct of the hearing, including
any objection to the introduction of evidence, may be stated orally or
in writing, accompanied by a short statement of the grounds of such
objection, and included in the record. No such objection shall be deemed
waived by further participation in the hearing.
Sec. 102.42 Filings of briefs and proposed findings with the
administrative law judge and oral argument at the hearing.
Any party shall be entitled, upon request, to a reasonable period at
the close of the hearing for oral argument, which may include
presentation of proposed findings and conclusions, and shall be included
in the stenographic report of the hearing. In the discretion of the
administrative law judge, any party may, upon request made before the
close of the hearing, file a brief or proposed findings and conclusions,
or both, with the administrative law judge, who may fix a reasonable
time for such filing, but not in excess of 35 days from the close of the
hearing. Requests for further extensions of time shall be made to the
chief administrative law judge in Washington, D.C., to the associate
chief judge in San Francisco, California, to the associate chief judge
in New York, New York, or to the
[[Page 50]]
associate chief judge in Atlanta, Georgia, as the case may be. Notice of
the request for any extension shall be immediately served on all other
parties, and proof of service shall be furnished. Three copies of the
brief or proposed findings and conclusions shall be filed with the
administrative law judge, and copies shall be served on the other
parties, and a statement of such service shall be furnished. In any case
in which the administrative law judge believes that written briefs or
proposed findings of fact and conclusions may not be necessary, he or
she shall notify the parties at the opening of the hearing or as soon
thereafter as practicable that he or she may wish to hear oral argument
in lieu of briefs.
[61 FR 6942, Feb. 23, 1996, as amended at 62 FR 1668, Jan. 13, 1997]
Sec. 102.43 Continuance and adjournment.
In the discretion of the administrative law judge, the hearing may
be continued from day to day, or adjourned to a later date or to a
different place, by announcement thereof at the hearings by the
administrative law judge, or by other appropriate notice.
Administrative Law Judge's Decision and Transfer of Case to the Board
Sec. 102.45 Administrative law judge's decision; contents; service;
transfer of case to the Board; contents of record in case.
(a) After hearing for the purpose of taking evidence upon a
complaint, the administrative law judge shall prepare a decision. Such
decision shall contain findings of fact, conclusions, and the reasons or
basis therefor, upon all material issues of fact, law, or discretion
presented on the record, and shall contain recommendations as to what
disposition of the case should be made, which may include, if it be
found that the respondent has engaged in or is engaging in the alleged
unfair labor practices, a recommendation for such affirmative action by
the respondent as will effectuate the policies of the Act. The
administrative law judge shall file the original of his decision with
the Board and cause a copy thereof to be served on each of the parties.
If the administrative law judge delivers a bench decision, promptly upon
receiving the transcript the judge shall certify the accuracy of the
pages of the transcript containing the decision; file with the Board a
certified copy of those pages, together with any supplementary matter
the judge may deem necessary to complete the decision; and cause a copy
thereof to be served on each of the parties. Upon the filing of the
decision, the Board shall enter an order transferring the case to the
Board and shall serve copies of the order, setting forth the date of
such transfer, on all the parties. Service of the administrative law
judge's decision and of the order transferring the case to the Board
shall be complete upon mailing.
(b) The charge upon which the complaint was issued and any
amendments thereto, the complaint and any amendments thereto, notice of
hearing, answer and any amendments thereto, motions, rulings, orders,
the stenographic report of the hearing, stipulations, exhibits,
documentary evidence, and depositions, together with the administrative
law judge's decision and exceptions, and any cross-exceptions or
answering briefs as provided in Sec. 102.46, shall constitute the
record in the case.
[28 FR 7973, Aug. 6, 1963, as amended at 59 FR 65945, Dec. 22, 1994; 61
FR 6942, Feb. 23, 1996]
Exceptions to the Record and Proceedings
Sec. 102.46 Exceptions, cross-exceptions, briefs, answering briefs; time for
filing; where to file; service on the parties; extension of time; effect of
failure to include matter in exceptions; reply briefs; oral arguments.
(a) Within 28 days, or within such further period as the Board may
allow, from the date of the service of the order transferring the case
to the Board, pursuant to Sec. 102.45, any party may (in accordance
with section 10(c) of the Act and Sec. Sec. 102.111 and 102.112 of
these rules) file with the Board in Washington, DC, exceptions to the
administrative law judge's decision or to any other part of the record
or proceedings (including rulings upon all motions or objections),
together with a brief in support of said exceptions. Any party may,
within the same period, file a brief in support of the administrative
[[Page 51]]
law judge's decision. The filing of such exceptions and briefs is
subject to the provisions of paragraph (j) of this section. Requests for
extension of time to file exceptions or briefs shall be in writing and
copies thereof shall be served promptly on the other parties.
(b)(1) Each exception (i) shall set forth specifically the questions
of procedure, fact, law, or policy to which exception is taken; (ii)
shall identify that part of the administrative law judge's decision to
which objection is made; (iii) shall designate by precise citation of
page the portions of the record relied on; and (iv) shall concisely
state the grounds for the exception. If a supporting brief is filed the
exceptions document shall not contain any argument or citation of
authority in support of the exceptions, but such matters shall be set
forth only in the brief. If no supporting brief is filed the exceptions
document shall also include the citation of authorities and argument in
support of the exceptions, in which event the exceptions document shall
be subject to the 50-page limit as for briefs set forth in Sec.
102.46(j).
(2) Any exception to a ruling, finding, conclusion, or
recommendation which is not specifically urged shall be deemed to have
been waived. Any exception which fails to comply with the foregoing
requirements may be disregarded.
(c) Any brief in support of exceptions shall contain no matter not
included within the scope of the exceptions and shall contain, in the
order indicated, the following:
(1) A clear and concise statement of the case containing all that is
material to the consideration of the questions presented.
(2) A specification of the questions involved and to be argued,
together with a reference to the specific exceptions to which they
relate.
(3) The argument, presenting clearly the points of fact and law
relied on in support of the position taken on each question, with
specific page reference to the record and the legal or other material
relied on.
(d)(1) Within 14 days, or such further period as the Board may
allow, from the last date on which exceptions and any supporting brief
may be filed, a party opposing the exceptions may file an answering
brief to the exceptions, in accordance with the provisions of paragraph
(j) of this section.
(2) The answering brief to the exceptions shall be limited to the
questions raised in the exceptions and in the brief in support thereof.
It shall present clearly the points of fact and law relied on in support
of the position taken on each question. Where exception has been taken
to a factual finding of the administrative law judge and it is proposed
to support that finding, the answering brief should specify those pages
of the record which, in the view of the party filing the brief, support
the administrative law judge's finding.
(3) Requests for extension of time to file an answering brief to the
exceptions shall be in writing and copies thereof shall be served
promptly on the other parties.
(e) Any party who has not previously filed exceptions may, within 14
days, or such further period as the Board may allow, from the last date
on which exceptions and any supporting brief may be filed, file cross-
exceptions to any portion of the administrative law judge's decision,
together with a supporting brief, in accordance with the provisions of
paragraphs (b) and (j) of this section.
(f)(1) Within 14 days, or such further period as the Board may
allow, from the last date on which cross-exceptions and any supporting
brief may be filed, any other party may file an answering brief to such
cross-exceptions in accordance with the provisions of paragraphs (c) and
(j) of this section. Such answering brief shall be limited to the
questions raised in the cross-exceptions.
(2) Requests for extension of time to file cross-exceptions, or
answering brief to cross-exceptions, shall be in writing and copies
thereof shall be served promptly on the other parties.
(g) No matter not included in exceptions or cross-exceptions may
thereafter be urged before the Board, or in any further proceeding.
(h) Within 14 days from the last date on which an answering brief
may be filed pursuant to paragraph (d) or (f) of this section, any party
may file a reply brief to any such answering brief. Any
[[Page 52]]
reply brief filed pursuant to this subsection shall be limited to
matters raised in the brief to which it is replying, and shall not
exceed 10 pages. No extensions of time shall be granted for the filing
of reply briefs, nor shall permission be granted to exceed the 10 page
length limitation. Eight copies of any reply brief shall be filed with
the Board, copies shall be served on the other parties, and a statement
of such service shall be furnished. No further briefs shall be filed
except by special leave of the Board. Requests for such leave shall be
in writing and copies thereof shall be served promptly on the other
parties.
(i) Should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board
simultaneously with the statement of any exceptions or cross-exceptions
filed pursuant to the provisions of this section with a statement of
service on the other parties. The Board shall notify the parties of the
time and place of oral argument, if such permission is granted. Oral
arguments are limited to 30 minutes for each party entitled to
participate. No request for additional time will be granted unless
timely application is made in advance of oral argument.
(j) Exceptions to administrative law judges' decisions, or to the
record, and briefs shall be printed or otherwise legibly duplicated.
Carbon copies of typewritten matter will not be accepted. Eight copies
of such documents shall be filed with the Board in Washington, DC, and
copies shall also be served promptly on the other parties. All documents
filed pursuant to this section shall be double spaced on 8 \1/2\ by 11-
inch paper. Any brief filed pursuant to this section shall not be
combined with any other brief, and except for reply briefs whose length
is governed by paragraph (h) of this section, shall not exceed 50 pages
in length, exclusive of subject index and table of cases and other
authorities cited, unless permission to exceed that limit is obtained
from the Board by motion, setting forth the reasons therefor, filed not
less than 10 days prior to the date the brief is due. Where any brief
filed pursuant to this section exceeds 20 pages, it shall contain a
subject index with page references and an alphabetical table of cases
and other authorities cited.
[56 FR 49142, Sept. 27, 1991]
Sec. 102.47 Filing of motion after transfer of case to Board.
All motions filed after the case has been transferred to the Board
pursuant to Sec. 102.45 shall be filed with the Board in Washington,
DC, by transmitting eight copies thereof, together with an affidavit of
service on the parties. Such motions shall be printed or otherwise
legibly duplicated: Provided, however, That carbon copies of typewritten
matter shall not be filed and if submitted will not be accepted.
[29 FR 15919, Nov. 28, 1964]
Procedure Before the Board
Sec. 102.48 Action of the Board upon expiration of time to file exceptions
to the administrative law judge's decision; decisions by the Board;
extraordinary postdecisional motions.
(a) In the event no timely or proper exceptions are filed as herein
provided, the findings, conclusions, and recommendations of the
administrative law judge as contained in his decision shall, pursuant to
section 10(c) of the Act, automatically become the decision and order of
the Board and become its findings, conclusions, and order, and all
objections and exceptions thereto shall be deemed waived for all
purposes.
(b) Upon the filing of timely and proper exceptions, and any cross-
exceptions, or answering briefs, as provided in Sec. 102.46, the Board
may decide the matter forthwith upon the record, or after oral argument,
or may reopen the record and receive further evidence before a member of
the Board or other Board agent or agency, or may make other disposition
of the case.
(c) Where exception is taken to a factual finding of the
administrative law judge, the Board, in determining whether the finding
is contrary to a preponderance of the evidence, may limit its
consideration to such portions of the record as are specified in the
exceptions, the supporting brief, and the answering brief.
[[Page 53]]
(d)(1) A party to a proceeding before the Board may, because of
extraordinary circumstances, move for reconsideration, rehearing, or
reopening of the record after the Board decision or order. A motion for
reconsideration shall state with particularity the material error
claimed and with respect to any finding of material fact shall specify
the page of the record relied on. A motion for rehearing shall specify
the error alleged to require a hearing de novo and the prejudice to the
movant alleged to result from such error. A motion to reopen the record
shall state briefly the additional evidence sought to be adduced, why it
was not presented previously, and that, if adduced and credited, it
would require a different result. Only newly discovered evidence,
evidence which has become available only since the close of the hearing,
or evidence which the Board believes should have been taken at the
hearing will be taken at any further hearing.
(2) Any motion pursuant to this section shall be filed within 28
days, or such further period as the Board may allow, after the service
of the Board's decision or order, except that a motion for leave to
adduce additional evidence shall be filed promptly on discovery of such
evidence. Copies of any request for an extension of time shall be served
promptly on the other parties.
(3) The filing and pendency of a motion under this provision shall
not operate to stay the effectiveness of the action of the Board unless
so ordered. A motion for reconsideration or for rehearing need not be
filed to exhaust administrative remedies.
[28 FR 7974, Aug. 6, 1963, as amended at 34 FR 14432, Sept. 16, 1969; 51
FR 23746, July 1, 1986; 56 FR 49143, Sept. 27, 1991]
Sec. 102.49 Modification or setting aside of order of Board before record
filed in court; action thereafter.
Within the limitations of the provisions of section 10(c) of the
Act, and Sec. 102.48, until a transcript of the record in a case shall
have been filed in a court, within the meaning of section 10 of the Act,
the Board may at any time upon reasonable notice modify or set aside, in
whole or in part, any findings of fact, conclusions of law, or order
made or issued by it. Thereafter, the Board may proceed pursuant to
Sec. 102.50, insofar as applicable.
Sec. 102.50 Hearings before Board or member thereof.
Whenever the Board deems it necessary in order to effectuate the
purpose of the act or to avoid unnnecessary costs or delay, it may, at
any time after a complaint has issued pursuant to Sec. 102.15 or Sec.
102.33, order that such complaint and any proceeding which may have been
instituted with respect thereto be transferred to and continued before
it or any member of the Board. The provisions of this subpart shall,
insofar as applicable, govern proceedings before the Board or any member
pursuant to this section, and the powers granted to administrative law
judges in such provisions shall, for the purpose of this section, be
reserved to and exercised by the Board or the member thereof who shall
preside.
Sec. 102.51 Settlement or adjustment of issues.
At any stage of a proceeding prior to hearing, where time, the
nature of the proceeding, and the public interest permit, all interested
parties shall have opportunity to submit to the regional director, with
whom the charge was filed, for consideration facts, arguments, offers of
settlement, or proposals of adjustment.
Back-Pay Proceedings
Sec. 102.52 Compliance with Board order; notification of compliance
determination.
After entry of a Board order directing remedial action, or the entry
of a court judgment enforcing such order, the Regional Director shall
seek compliance from all persons having obligations thereunder. The
Regional Director shall make a compliance determination as appropriate
and shall notify the parties of the compliance determination. A charging
party adversely affected by a monetary, make-whole, reinstatement, or
other compliance determination will be provided,
[[Page 54]]
on request, with a written statement of the basis for that
determination.
[53 FR 37755, Sept. 28, 1988]
Sec. 102.53 Review by the General Counsel of compliance determination;
appeal to the Board of the General Counsel's decision.
(a) The charging party may appeal such determination to the General
Counsel in Washington, DC, within 14 days of the written statement of
compliance determination provided as set forth in Sec. 102.52. The
appeal shall contain a complete statement setting forth the facts and
reasons upon which it is based and shall identify with particularity the
error claimed in the Regional Director's determination. The charging
party shall serve a copy of the appeal on all other parties and on the
Regional Director. The General Counsel may for good cause shown extend
the time for filing an appeal.
(b) The General Counsel may affirm or modify the determination of
the Regional Director, or may take such other action deemed appropriate,
stating the gounds for the decision.
(c) Within 14 days after service of the General Counsel's decision,
the charging party may file a request for review of that decision with
the Board in Washington, DC. The request for review shall contain a
complete statement of the facts and reasons upon which it is based and
shall identify with particularity the error claimed in the General
Counsel's decision. A copy of the request for review shall be served on
the General Counsel and on the Regional Director.
(d) The Board may affirm or modify the decision of the General
Counsel, or make such other disposition of the matter as it deems
appropriate. The denial of the request for review will constitute an
affirmance of the decision of the General Counsel.
[53 FR 37755, Sept. 28, 1988]
Sec. 102.54 Initiation of formal compliance proceedings; issuance of
compliance specification and notice of hearing.
(a) If it appears that controversy exists with respect to compliance
with an order of the Board which cannot be resolved without a formal
proceeding, the Regional Director may issue and serve on all parties a
compliance specification in the name of the Board. The specification
shall contain or be accompanied by a notice of hearing before an
administrative law judge at a place therein fixed and at a time not less
than 21 days after the service of the specification.
(b) Whenever the Regional Director deems it necessary in order to
effectuate the purposes and policies of the Act or to avoid unnecessary
costs or delay, the Regional Director may issue a compliance
specification, with or without a notice of hearing, based on an
outstanding complaint.
(c) Whenever the Regional Director deems it necessary in order to
effectuate the purposes and policies of the Act or to avoid unnecessary
costs or delay, the Regional Director may consolidate with a complaint
and notice of hearing issued pursuant to Sec. 102.15 a compliance
specification based on that complaint. After opening of the hearing,
consolidation shall be subject to the approval of the Board or the
administrative law judge, as appropriate. Issuance of a compliance
specification shall not be a prerequisite or bar to Board initiation of
proceedings in any administrative or judicial forum which the Board or
the Regional Director determines to be appropriate for obtaining
compliance with a Board order.
[53 FR 37755, Sept. 28, 1988, as amended at 62 FR 9685, Mar. 4, 1997]
Sec. 102.55 Contents of compliance specification.
(a) Contents of specification with respect to allegations concerning
the amount of backpay due. With respect to allegations concerning the
amount of backpay due, the specification shall specifically and in
detail show, for each employee, the backpay periods broken down by
calendar quarters, the specific figures and basis of computation of
gross backpay and interim earnings, the expenses for each quarter, the
net backpay due, and any other pertinent information.
(b) Contents of specification with respect to allegations other than
the amount of backpay due. With respect to allegations other than the
amount of backpay due, the specification shall contain
[[Page 55]]
a clear and concise description of the respects in which the respondent
has failed to comply with a Board or court order, including the remedial
acts claimed to be necessary for compliance by the respondent and, where
known, the approximate dates, places, and names of the respondent's
agents or other representatives described in the specification.
(c) Amendments to specification. After the issuance of the notice of
compliance hearing but prior to the opening of the hearing, the Regional
Director may amend the specification. After the opening of the hearing,
the specification may be amended upon leave of the administrative law
judge or the Board, as the case may be, upon good cause shown.
[53 FR 37756, Sept. 28, 1988]
Sec. 102.56 Answer to compliance specification.
(a) Filing and service of answer; form. Each respondent alleged in
the specification to have compliance obligations shall, within 21 days
from the service of the specification, file an original and four copies
of an answer thereto with the Regional Director issuing the
specification, and shall immediately serve a copy thereof on the other
parties. The answer to the specification shall be in writing, the
original being signed and sworn to by the respondent or by a duly
authorized agent with appropriate power of attorney affixed, and shall
contain the mailing address of the respondent.
(b) Contents of answer to specification. The answer shall
specifically admit, deny, or explain each and every allegation of the
specification, unless the respondent is without knowledge, in which case
the respondent shall so state, such statement operating as a denial.
Denials shall fairly meet the substance of the allegations of the
specification at issue. When a respondent intends to deny only a part of
an allegation, the respondent shall specify so much of it as is true and
shall deny only the remainder. As to all matters within the knowledge of
the respondent, including but not limited to the various factors
entering into the computation of gross backpay, a general denial shall
not suffice. As to such matters, if the respondent disputes either the
accuracy of the figures in the specification or the premises on which
they are based, the answer shall specifically state the basis for such
disagreement, setting forth in detail the respondent's position as to
the applicable premises and furnishing the appropriate supporting
figures.
(c) Effect of failure to answer or to plead specifically and in
detail to backpay allegations of specification. If the respondent fails
to file any answer to the specification within the time prescribed by
this section, the Board may, either with or without taking evidence in
support of the allegations of the specification and without further
notice to the respondent, find the specification to be true and enter
such order as may be appropriate. If the respondent files an answer to
the specification but fails to deny any allegation of the specification
in the manner required by paragraph (b) of this section, and the failure
so to deny is not adequately explained, such allegation shall be deemed
to be admitted to be true, and may be so found by the Board without the
taking of evidence supporting such allegation, and the respondent shall
be precluded from introducing any evidence controverting the allegation.
(d) Extension of time for filing answer to specification. Upon the
Regional Director's own motion or upon proper cause shown by any
respondent, the Regional Director issuing the compliance specification
and notice of hearing may by written order extend the time within which
the answer to the specification shall be filed.
(e) Amendment to answer. Following the amendment of the
specification by the Regional Director, any respondent affected by the
amendment may amend its answer thereto.
[53 FR 37756, Sept. 28, 1988]
Sec. 102.57 Extension of date of hearing.
Upon the Regional Director's own motion or upon proper cause shown,
the Regional Director issuing the compliance specification and notice of
hearing may extend the date of the hearing.
[53 FR 37756, Sept. 28, 1988]
[[Page 56]]
Sec. 102.58 Withdrawal.
Any compliance specification and notice of hearing may be withdrawn
before the hearing by the Regional Director upon his or her own motion.
[53 FR 37756, Sept. 28, 1988]
Sec. 102.59 Hearing; posthearing procedure.
After the issuance of a compliance specification and notice of
hearing, the procedures provided in Sec. Sec. 102.24 to 102.51 shall be
followed insofar as applicable.
[53 FR 37756, Sept. 28, 1988]
Subpart C_Procedure Under Section 9(c) of the Act for the Determination
of Questions Concerning Representation of Employees \3\ and for
Clarification of Bargaining Units and for Amendment of Certifications
Under Section 9(b) of the Act
---------------------------------------------------------------------------
\3\Procedure under the first proviso to sec. 8(b)(7)(C) of the Act
is governed by subpart D.
---------------------------------------------------------------------------
Sec. 102.60 Petitions.
(a) Petition for certification or decertification; who may file;
where to file; withdrawal. A petition for investigation of a question
concerning representation of employees under paragraphs (1)(A)(i) and
(1)(B) of section 9(c) of the Act (hereinafter called a petition for
certification) may be filed by an employee or group of employees or any
individual or labor organization acting in their behalf or by an
employer. A petition under paragraph (1)(A)(ii) of section 9(c) of the
Act, alleging that the individual or labor organization which has been
certified or is being currently recognized as the bargaining
representative is no longer such representative (hereinafter called a
petition for decertification), may be filed by any employee or group of
employees or any individual or labor organization acting in their
behalf. Petitions under this section shall be in writing and signed, and
either shall be sworn to before a notary public, Board agent, or other
person duly authorized by law to administer oaths and take
acknowledgments or shall contain a declaration by the person signing it,
under the penalty of perjury, that its contents are true and correct
(see 28 U.S.C. Sec. 1746). One original of the petition shall be filed.
A person filing a petition by facsimile pursuant to Sec. 102.114(f)
shall also file an original for the Agency's records, but failure to do
so shall not affect the validity of the filing by facsimile, if
otherwise proper. Except as provided in Sec. 102.72, such petitions
shall be filed with the Regional Director for the Region wherein the
bargaining unit exists, or, if the bargaining unit exists in two or more
Regions, with the Regional Director for any of such Regions. Prior to
the transfer of the case to the Board, pursuant to Sec. 102.67, the
petition may be withdrawn only with the consent of the Regional Director
with whom such petition was filed. After the transfer of the case to the
Board, the petition may be withdrawn only with the consent of the Board.
Whenever the Regional Director or the Board, as the case may be,
approves the withdrawal of any petition, the case shall be closed.
(b) Petition for clarification of bargaining unit or petition for
amendment of certification under section 9(b) of the Act; who may file;
where to file; withdrawal. A petition for clarification of an existing
bargaining unit or a petition for amendment of certification, in the
absence of a question concerning representation, may be filed by a labor
organization or by an employer. Where applicable the same procedures set
forth in paragraph (a) of this section shall be followed.
[29 FR 15919, Nov. 28, 1964, as amended at 60 FR 56235, Nov. 8, 1995; 67
FR 658, Jan. 7, 2002]
Sec. 102.61 Contents of petition for certification; contents of petition
for decertification; contents of petition for clarification of bargaining
unit; contents of petition for amendment of certification.
(a) A petition for certification, when filed by an employee or group
of employees or an individual or labor organization acting in their
behalf, shall contain the following:
(1) The name of the employer.
(2) The address of the establishments involved.
[[Page 57]]
(3) The general nature of the employer's business.
(4) A description of the bargaining unit which the petitioner claims
to be appropriate.
(5) The names and addresses of any other persons or labor
organizations who claim to represent any employees in the alleged
appropriate unit, and brief descriptions of the contracts, if any,
covering the employees in such unit.
(6) The number of employees in the alleged appropriate unit.
(7) A statement that the employer declines to recognize the
petitioner as the representative within the meaning of section 9(a) of
the Act or that the labor organization is currently recognized but
desires certification under the act.
(8) The name, affiliation, if any, and address of the petitioner.
(9) Whether a strike or picketing is in progress at the
establishment involved and, if so, the approximate number of employees
participating, and the date such strike or picketing commenced.
(10) Any other relevant facts.
(b) A petition for certification, when filed by an employer, shall
contain the following:
(1) The name and address of the petitioner.
(2) The general nature of the petitioner's business.
(3) A brief statement setting forth that one or more individuals or
labor organizations have presented to the petitioner a claim to be
recognized as the exclusive representative of all employees in the unit
claimed to be appropriate; a description of such unit; and the number of
employees in the unit.
(4) The name or names, affiliation, if any, and addresses of the
individuals or labor organizations making such claim for recognition.
(5) A statement whether the petitioner has contracts with any labor
organization or other representatives of employees and, if so, their
expiration date.
(6) Whether a strike or picketing is in progress at the
establishment involved and, if so, the approximate number of employees
participating, and the date such strike or picketing commenced.
(7) Any other relevant facts.
(c) Petitions for decertification shall contain the following:
(1) The name of the employer.
(2) The address of the establishments and a description of the
bargaining unit involved.
(3) The general nature of the employer's business.
(4) Name and address of the petitioner and affiliation, if any.
(5) Name or names of the individuals or labor organizations who have
been certified or are being currently recognized by the employer and who
claim to represent any employees in the unit involved, and the
expiration date of any contracts covering such employees.
(6) An allegation that the individuals or labor organizations who
have been certified or are currently recognized by the employer are no
longer the representative in the appropriate unit as defined in section
9(a) of the Act.
(7) The number of employees in the unit.
(8) Whether a strike or picketing is in progress at the
establishment involved and, if so, the approximate number of employees
participating, and the date such strike or picketing commenced.
(9) Any other relevant facts.
(d) A petition for clarification shall contain the following:
(1) The name of the employer and the name of the recognized or
certified bargaining representative.
(2) The address of the establishment involved.
(3) The general nature of the employer's business.
(4) A description of the present bargaining unit, and, if the
bargaining unit is certified, an identification of the existing
certification.
(5) A description of the proposed clarification.
(6) The names and addresses of any other persons or labor
organizations who claim to represent any employees affected by the
proposed clarifications, and brief descriptions of the contracts, if
any, covering any such employees.
(7) The number of employees in the present bargaining unit and in
the unit as proposed under the clarification.
(8) The job classifications of employees as to whom the issue is
raised, and
[[Page 58]]
the number of employees in each classification.
(9) A statement by petitioner setting forth reasons why petitioner
desires clarification of unit.
(10) The name, the affiliation, if any, and the address of the
petitioner.
(11) Any other relevant facts.
(e) A petition for amendment of certification shall contain the
following:
(1) The name of the employer and the name of the certified union
involved.
(2) The address of the establishment involved.
(3) The general nature of the employer's business.
(4) Identification and description of the existing certification.
(5) A statement by petitioner setting forth the details of the
desired amendment and reasons therefor.
(6) The names and addresses of any other persons or labor
organizations who claim to represent any employees in the unit covered
by the certification and brief descriptions of the contracts, if any,
covering the employees in such unit.
(7) The name, the affiliation, if any, and the address of the
petitioner.
(8) Any other relevant facts.
[26 FR 3887, May 4, 1961, as amended at 29 FR 15919, Nov. 28, 1964]
Sec. 102.62 Consent-election agreements.
(a) Where a petition has been duly filed, the employer and any
individual or labor organizations representing a substantial number of
employees involved may, with the approval of the Regional Director,
enter into a consent-election agreement leading to a determination by
the Regional Director of the facts ascertained after such consent
election. Such agreement shall include a description of the appropriate
unit, the time and place of holding the election, and the payroll period
to be used in determining what employees within the appropriate unit
shall be eligible to vote. Such consent election shall be conducted
under the direction and supervision of the Regional Director. The method
of conducting such consent election shall be consistent with the method
followed by the Regional Director in conducting elections pursuant to
Sec. Sec. 102.69 and 102.70 except that the rulings and determinations
by the Regional Director of the results thereof shall be final, and the
Regional Director shall issue to the parties a certification of the
results of the election, including certifications of representative
where appropriate, with the same force and effect, in that case, as if
issued by the Board, provided further that rulings or determinations by
the Regional Director in respect to any amendment of such certification
shall also be final.
(b) Where a petition has been duly filed, the employer and any
individuals or labor organizations representing a substantial number of
the employees involved may, with the approval of the regional director,
enter into an agreement providing for a waiver of hearing and a consent
election leading to a determination by the Board of the facts
ascertained after such consent election, if such a determination is
necessary. Such agreement shall also include a description of the
appropriate bargaining unit, the time and place of holding the election,
and the payroll period to be used in determining which employees within
the appropriate unit shall be eligible to vote. Such consent election
shall be conducted under the direction and supervision of the regional
director. The method of conducting such election and the post election
procedure shall be consistent with that followed by the regional
director in conducting elections pursuant to Sec. Sec. 102.69 and
102.70.
(c) Where a petition has been duly filed, the employer and any
individual or labor organizations representing a substantial number of
the employees involved may, with the approval of the Regional Director,
enter into an agreement providing for a hearing pursuant to Sec. Sec.
102.63, 102.64, 102.65, 102.66 and 102.67 to resolve any issue necessary
to resolve the question concerning representation. Upon the conclusion
of such a hearing, the Regional Director shall issue a Decision. The
rulings and determinations by the Regional Director thereunder shall be
final, with the same force and effect, in that case, as if issued by the
Board. Any election ordered by the Regional Director shall be conducted
under the direction and supervision of the Regional Director. The method
of conducting such consent
[[Page 59]]
election shall be consistent with the method followed by the Regional
Director in conducting elections pursuant to Sec. Sec. 102.69 and
102.70, except that the rulings and determinations by the Regional
Director of the results thereof shall be final, and the Regional
Director shall issue to the parties a certification of the results of
the election, including certifications of representative where
appropriate, with the same force and effect, in that case, as if issued
by the Board, provided further that rulings or determinations by the
Regional Director in respect to any amendment of such certification
shall also be final.
[26 FR 3887, May 4, 1961, as amended at 70 FR 3478, Jan. 25, 2005]
Sec. 102.63 Investigation of petition by regional director; notice of
hearing; service of notice; withdrawal of notice.
(a) After a petition has been filed under Sec. 102.61 (a), (b), or
(c), if no agreement such as that provided in Sec. 102.62 is entered
into and if it appears to the regional director that there is reasonable
cause to believe that a question of representation affecting commerce
exists, that the policies of the act will be effectuated, and that an
election will reflect the free choice of employees in the appropriate
unit, the Regional Director shall prepare and cause to be served upon
the parties and upon any known individuals or labor organizations
purporting to act as representatives of any employees directly affected
by such investigation, a notice of hearing before a hearing officer at a
time and place fixed therein. A copy of the petition shall be served
with such notice of hearing. Any such notice of hearing may be amended
or withdrawn before the close of the hearing by the regional director on
his own motion.
(b) After a petition has been filed under Sec. 102.61(d) or (e),
the regional director shall conduct an investigation and, as
appropriate, he may issue a decision without a hearing; or prepare and
cause to be served upon the parties and upon any known individuals or
labor organizations purporting to act as representatives of any
employees directly affected by such investigation, a notice of hearing
before a hearing officer at a time and place fixed therein; or take
other appropriate action. If a notice of hearing is served, it shall be
accompanied by a copy of the petition. Any such notice of hearing may be
amended or withdrawn before the close of the hearing by the regional
director on his own motion. All hearing and posthearing procedure under
this paragraph (b) shall be in conformance with Sec. Sec. 102.64
through 102.68 whenever applicable, except where the unit or
certification involved arises out of an agreement as provided in Sec.
102.62(a), the regional director's action shall be final, and the
provisions for review of regional director's decisions by the Board
shall not apply. Dismissals of petitions without a hearing shall not be
governed by Sec. 102.71. The regional director's dismissal shall be by
decision, and a request for review therefrom may be obtained under Sec.
102.67, except where an agreement under Sec. 102.62(a) is involved.
[29 FR 15919, Nov. 28, 1964]
Sec. 102.64 Conduct of hearing.
(a) Hearings shall be conducted by a hearing officer and shall be
open to the public unless otherwise ordered by the hearing officer. At
any time, a hearing officer may be substituted for the hearing officer
previously presiding. It shall be the duty of the hearing officer to
inquire fully into all matters and issues necessary to obtain a full and
complete record upon which the Board or the regional director may
discharge their duties under section 9(c) of the Act.
(b) The hearing officer may, in his discretion, continue the hearing
from day to day, or adjourn it to a later date or to a different place,
by announcement thereof at the hearing or by other appropriate notice.
[26 FR 3888, May 4, 1961]
Sec. 102.65 Motions; interventions.
(a) All motions, including motions for intervention pursuant to
paragraphs (b) and (e) of this section, shall be in writing or, if made
at the hearing, may be stated orally on the record and shall briefly
state the order or relief sought and the grounds for such motion. An
original and two copies of written motions shall be filed and a copy
thereof immediately shall be
[[Page 60]]
served on the other parties to the proceeding. Motions made prior to the
transfer of the case to the Board shall be filed with the regional
director, except that motions made during the hearing shall be filed
with the hearing officer. After the transfer of the case to the Board,
all motions shall be filed with the Board. Such motions shall be printed
or otherwise legibly duplicated: Provided, however, That carbon copies
of typewritten matter shall not be filed and if submitted will not be
accepted. Eight copies of such motions shall be filed with the Board.
The regional director may rule upon all motions filed with him, causing
a copy of said ruling to be served on the parties, or he may refer the
motion to the hearing officer: Provided, That if the regional director
prior to the close of the hearing grants a motion to dismiss the
petition, the petitioner may obtain a review of such ruling in the
manner prescribed in Sec. 102.71. The hearing officer shall rule,
either orally on the record or in writing, upon all motions filed at the
hearing or referred to him as hereinabove provided, except that all
motions to dismiss petitions shall be referred for appropriate action at
such time as the entire record is considered by the regional director or
the Board, as the case may be.
(b) Any person desiring to intervene in any proceeding shall make a
motion for intervention, stating the grounds upon which such person
claims to have an interest in the proceeding. The regional director or
the hearing officer, as the case may be, may by order permit
intervention in person or by counsel or other representative to such
extent and upon such terms as he may deem proper, and such intervenor
shall thereupon become a party to the proceeding.
(c) All motions, rulings, and orders shall become a part of the
record, except that rulings on motions to revoke subpoenas shall become
a part of the record only upon the request of the party aggrieved
thereby as provided in Sec. 102.66(c). Unless expressly authorized by
the Rules and Regulations, rulings by the regional director or by the
hearing officer shall not be appealed directly to the Board, but shall
be considered by the Board on appropriate appeal pursuant to Sec.
102.67 (b), (c), and (d) or whenever the case is transferred to it for
decision: Provided, however, That if the regional director has issued an
order transferring the case to the Board for decision such rulings may
be appealed directly to the Board by special permission of the Board.
Nor shall rulings by the hearing officer be appealed directly to the
regional director unless expressly authorized by the Rules and
Regulations, except by special permission of the regional director, but
shall be considered by the regional director when he reviews the entire
record. Requests to the regional director, or to the Board in
appropriate cases, for special permission to appeal from a ruling of the
hearing officer, together with the appeal from such ruling, shall be
filed promptly, in writing, and shall briefly state (1) the reasons
special permission should be granted and (2) the grounds relied on for
the appeal. The moving party shall immediately serve a copy of the
request for special permission and of the appeal on the other parties
and on the regional director. Any statement in opposition or other
response to the request and/or to the appeal shall be filed promptly, in
writing, and shall be served immediately on the other parties and on the
regional director. If the Board or the regional director, as the case
may be, grants the request for special permission to appeal, the Board
or the regional director may proceed forthwith to rule on the appeal.
(d) The right to make motions or to make objections to rulings on
motions shall not be deemed waived by participation in the proceeding.
(e)(1) A party to a proceeding may, because of extraordinary
circumstances, move after the close of the hearing for reopening of the
record, or move after the decision or report for reconsideration, for
rehearing, or to reopen the record, but no such motion shall stay the
time for filing a request for review of a decision or exceptions to a
report. No motion for reconsideration, for rehearing, or to reopen the
record will be entertained by the Board or by any regional director with
respect to any matter which could have been but was not raised pursuant
to
[[Page 61]]
any other section of these rules: Provided, however, That the regional
director may treat a request for review of a decision or exceptions to a
report as a motion for reconsideration. A motion for reconsideration
shall state with particularity the material error claimed and with
respect to any finding of material fact shall specify the page of the
record relied on for the motion. A motion for rehearing or to reopen the
record shall specify briefly the error alleged to require a rehearing or
hearing de novo, the prejudice to the movant alleged to result from such
error, the additional evidence sought to be adduced, why it was not
presented previously, and what result it would require if adduced and
credited. Only newly discovered evidence--evidence which has become
available only since the close of the hearing--or evidence which the
regional director or the Board believes should have been taken at the
hearing will be taken at any further hearing.
(2) Any motion for reconsideration or for rehearing pursuant to this
paragraph shall be filed within 14 days, or such further period as may
be allowed, after the service of the decision or report. Any request for
an extension of time to file such a motion shall be served promptly on
the other parties. A motion to reopen the record shall be filed promptly
on discovery of the evidence sought to be adduced.
(3) The filing and pendency of a motion under this provision shall
not unless so ordered operate to stay the effectiveness of any action
taken or directed to be taken, except that, if the motion states with
particularity that the granting thereof will affect the eligibility to
vote of specific employees, the ballots of such employees shall be
challenged and impounded in any election conducted while such motion is
pending. A motion for reconsideration, for rehearing, or to reopen the
record need not be filed to exhaust administrative remedies.
[26 FR 3888, May 4, 1961, as amended at 36 FR 9133, May 20, 1971; 47 FR
40771, Sept. 15, 1982; 57 FR 12876, Apr. 14, 1992]
Sec. 102.66 Introduction of evidence: rights of parties at hearing;
subpoenas.
(a) Any party shall have the right to appear at any hearing in
person, by counsel, or by other representative, and any party and the
hearing officer shall have power to call, examine, and cross-examine
witnesses and to introduce into the record documentary and other
evidence. Witnesses shall be examined orally under oath. The rules of
evidence prevailing in courts of law or equity shall not be controlling.
Stipulations of fact may be introduced in evidence with respect to any
issue.
(b) Any objection with respect to the conduct of the hearing,
including any objection to the introduction of evidence, may be stated
orally or in writing, accompanied by a short statement of the grounds of
such objection, and included in the record. No such objection shall be
deemed waived by further participation in the hearing.
(c) The Board, or any Member thereof, shall, on the written
application of any party, forthwith issue subpoenas requiring the
attendance and testimony of witnesses and the production of any
evidence, including books, records, correspondence, or documents, in
their possession or under their control. The Executive Secretary shall
have the authority to sign and issue any such subpoenas on behalf of the
Board or any Member thereof. Any party may file applications for
subpoenas in writing with the Regional Director if made prior to
hearing, or with the hearing officer if made at the hearing.
Applications for subpoenas may be made ex parte. The Regional Director
or the hearing officer, as the case may be, shall forthwith grant the
subpoenas requested. Any person served with a subpoena, whether ad
testificandum or duces tecum, if he or she does not intend to comply
with the subpoena, shall, within 5 days after the date of service of the
subpoena, petition in writing to revoke the subpoena. The date of
service for purposes of computing the time for filing a petition to
revoke shall be the date the subpoena is received. Such petition shall
be filed with the regional director who may either rules upon it or
refer it for ruling
[[Page 62]]
to the hearing officer: Provided, however, That if the evidence called
for is to be produced at a hearing and the hearing has opened, the
petition to revoke shall be filed with the hearing officer. Notice of
the filing of petitions to revoke shall be promptly given by the
regional director or hearing officer, as the case may be, to the party
at whose request the subpoena was issued. The regional director or the
hearing officer, as the case may be, shall revoke the subpoena if, in
his opinion, the evidence whose production is required does not relate
to any matter under investigation or in question in the proceedings or
the subpoena does not describe with sufficient particularity the
evidence whose production is required, or if for any other reason
sufficient in law the subpoena is otherwise invalid. The regional
director or the hearing officer, as the case may be, shall make a simple
statement of procedural or other grounds for his ruling. The petition to
revoke, any answer filed thereto, and any ruling thereon shall not
become part of the record except upon the request of the party aggrieved
by the ruling. Persons compelled to submit data or evidence are entitled
to retain or, on payment of lawfully prescribed costs, to procure copies
or transcripts of the data or evidence submitted by them.
(d) Any party shall be entitled, upon request, to a reasonable
period at the close of the hearing for oral argument, which shall be
included in the stenographic report of the hearing.
(e) The hearing officer may submit an analysis of the record to the
regional director or the Board but he shall make no recommendations.
(f) Witness fees and mileage shall be paid by the party at whose
instance the witness appears.
[26 FR 3888, May 4, 1961, as amended at 61 FR 65331, Dec. 12, 1996; 62
FR 9932, Mar. 5, 1997]
Sec. 102.67 Proceedings before the regional director; further hearing; briefs;
action by the regional director; appeals from action by the regional director;
statement in opposition to appeal; transfer of case to the Board; proceedings before the Board; Board action.
(a) The regional director may proceed, either forthwith upon the
record or after oral argument, the submission of briefs, or further
hearing, as he may deem proper, to determine the unit appropriate for
the purpose of collective bargaining, to determine whether a question
concerning representation exists, and to direct an election, dismiss the
petition, or make other disposition of the matter. Any party desiring to
submit a brief to the regional director shall file the original and one
copy thereof, which may be a typed carbon copy, within 7 days after the
close of the hearing: Provided, however, That prior to the close of the
hearing and for good cause the hearing officer may grant an extension of
time not to exceed an additional 14 days. Copies of the brief shall be
served on all other parties to the proceeding and a statement of such
service shall be filed with the regional director together with the
brief. No reply brief may be filed except upon special leave of the
regional director.
(b) A decision by the regional director upon the record shall set
forth his findings, conclusions, and order or direction. The decision of
the regional director shall be final: Provided, however, That within 14
days after service thereof any party may file a request for review with
the Board in Washington, DC. The regional director shall schedule and
conduct any election directed by the decision notwithstanding that a
request for review has been filed with or granted by the Board. The
filing of such a request shall not, unless otherwise ordered by the
Board, operate as a stay of the election or any action taken or directed
by the regional director: Provided, however, That if a pending request
for review has not been ruled upon or has been granted ballots whose
validity might be affected by the final Board decision shall be
segregated in an appropriate manner, and all ballots shall be impounded
and remain unopened pending such decision.
(c) The Board will grant a request for review only where compelling
reasons exist therefor. Accordingly, a request for review may be granted
only upon one or more of the following grounds:
(1) That a substantial question of law or policy is raised because
of (i) the absence of, or (ii) a departure from, officially reported
Board precedent.
[[Page 63]]
(2) That the regional director's decision on a substantial factual
issue is clearly erroneous on the record and such error prejudicially
affects the rights of a party.
(3) That the conduct of the hearing or any ruling made in connection
with the proceeding has resulted in prejudicial error.
(4) That there are compelling reasons for reconsideration of an
important Board rule or policy.
(d) Any request for review must be a self-contained document
enabling the Board to rule on the basis of its contents without the
necessity or recourse to the record; however, the Board may, in its
discretion, examine the record in evaluating the request. With respect
to ground (2), and other grounds where appropriate, said request must
contain a summary of all evidence or rulings bearing on the issues
together with page citations from the transcript and a summary of
argument. But such request may not raise any issue or allege any facts
not timely presented to the regional director.
(e) Any party may, within 7 days after the last day on which the
request for review must be filed, file with the Board a statement in
opposition thereto, which shall be served in accordance with the
requirements of paragraph (k) of this section. A statement of such
service of opposition shall be filed simultaneously with the Board. The
Board may deny the request for review without awaiting a statement in
opposition thereto.
(f) The parties may, at any time, waive their right to request
review. Failure to request review shall preclude such parties from
relitigating, in any related subsequent unfair labor practice
proceeding, any issue which was, or could have been, raised in the
representation proceeding. Denial of a request for review shall
constitute an affirmance of the regional director's action which shall
also preclude relitigating any such issues in any related subsequent
unfair labor practice proceeding.
(g) The granting of a request for review shall not stay the regional
director's decision unless otherwise ordered by the Board. Except where
the Board rules upon the issues on review in the order granting review,
the appellants and other parties may, within 14 days after issuance of
an order granting review, file briefs with the Board. Such briefs may be
reproductions of those previously filed with the regional director and/
or other briefs which shall be limited to the issues raised in the
request for review. Where review has been granted, the Board will
consider the entire record in the light of the grounds relied on for
review. Any request for review may be withdrawn with the permission of
the Board at any time prior to the issuance of the decision of the Board
thereon.
(h) In any case in which it appears to the regional director that
the proceeding raises questions which should be decided by the Board, he
may, at any time, issue an order, to be effective after the close of the
hearing and before decision, transferring the case to the Board for
decision. Such an order may be served on the parties upon the record of
the hearing.
(i) If any case is transferred to the Board for decision after the
parties have filed briefs with the regional director, the parties may,
within such time after service of the order transferring the case as is
fixed by the regional director, file with the Board the brief previously
filed with the regional director. No further briefs shall be permitted
except by special permission of the Board. If the case is transferred to
the Board before the time expires for the filing of briefs with the
regional director and before the parties have filed briefs, such briefs
shall be filed as set forth above and served in accordance with the
requirements of paragraph (k) of this section within the time set by the
regional director. If the order transferring the case is served on the
parties during the hearing, the hearing officer may, prior to the close
of the hearing and for good cause, grant an extension of time within
which to file a brief with the Board for a period not to exceed an
additional 14 days. No reply brief may be filed except upon special
leave of the Board.
(j) Upon transfer of the case to the Board, the Board shall proceed,
either forthwith upon the record, or after oral argument or the
submission of briefs,
[[Page 64]]
or further hearing, as it may determine, to decide the issues referred
to it or to review the decision of the regional director and shall
direct a secret ballot of the employees or the appropriate action to be
taken on impounded ballots of an election already conducted, dismiss the
petition, affirm or reverse the regional director's order in whole or in
part, or make such other disposition of the matter as it deems
appropriate.
(k)(1) All documents filed with the Board under the provisions of
this section shall be filed in eight copies, double spaced, on 8\1/2\-
by 11-inch paper, and shall be printed or otherwise legibly duplicated.
Carbon copies of typewritten materials will not be accepted. Requests
for review, including briefs in support thereof; statements in
opposition thereto; and briefs on review shall not exceed 50 pages in
length, exclusive of subject index and table of cases and other
authorities cited, unless permission to exceed that limit is obtained
from the Board by motion, setting forth the reasons therefor, filed not
less than 5 days, including Saturdays, Sundays, and holidays, prior to
the date the document is due. Where any brief filed pursuant to this
section exceeds 20 pages, it shall contain a subject index with page
authorities cited.
(2) The party filing with the Board a request for review, a
statement in opposition to a request for review, or a brief on review
shall serve a copy thereof on the other parties and shall file a copy
with the regional director. A statement of such service shall be filed
with the Board together with the document.
(3) Requests for extensions of time to file requests for review,
statements in opposition to a request for review, or briefs, as
permitted by this section, shall be filed with the Board or the Regional
Director, as the case may be. The party filing the request for an
extension of time shall serve a copy thereof on the other parties and,
if filed with the Board, on the Regional Director. A statement of such
service shall be filed with the document.
[26 FR 3889, May 4, 1961, as amended at 42 FR 41117, Aug. 15, 1977; 47
FR 40771, Sept. 15, 1982; 51 FR 23747, July 1, 1986; 56 FR 49143, Sept.
27, 1991]
Sec. 102.68 Record; what constitutes; transmission to Board.
The record in a proceeding conducted pursuant to the foregoing
section shall consist of: the petition, notice of hearing with affidavit
of service thereof, motions, rulings, orders, the stenographic report of
the hearing and of any oral argument before the regional director,
stipulations, exhibits, affidavits of service, and any briefs or other
legal memoranda submitted by the parties to the regional director or to
the Board, and the decision of the regional director, if any.
Immediately upon issuance by the regional director of an order
transferring the case to the Board, or upon issuance of an order
granting a request for review by the Board, the regional director shall
transmit the record to the Board.
[46 FR 45922, Sept. 15, 1981]
Sec. 102.69 Election procedure; tally of ballots; objections; certification
by the regional director; report on challenged ballots; report on objections;
exceptions; action of the Board; hearing.
(a) Unless otherwise directed by the Board, all elections shall be
conducted under the supervision of the Regional Director in whose Region
the proceeding is pending. All elections shall be by secret ballot.
Whenever two or more labor organizations are included as choices in an
election, either participant may, upon its prompt request to and
approval thereof by the Regional Director, whose decision shall be
final, have its name removed from the ballot: Provided, however, That in
a proceeding involving an employer-filed petition or a petition for
decertification the labor organization certified, currently recognized,
or found to be seeking recognition may not have its name removed from
the ballot without giving timely notice in writing to all parties and
the Regional Director, disclaiming any representation interest among the
employees in the unit. Any party may be represented by observers of its
own selection, subject to such limitations as the Regional Director may
prescribe. Any party and Board agents may challenge, for good cause, the
eligibility of any person to participate in the election. The ballots of
such challenged
[[Page 65]]
persons shall be impounded. Upon the conclusion of the election the
ballots will be counted and a tally of ballots prepared and immediately
made available to the parties. Within 7 days after the tally of ballots
has been prepared, any party may file with the Regional Director an
original and five copies of objections to the conduct of the election or
to conduct affecting the results of the election, which shall contain a
short statement of the reasons therefor. Such filing must be timely
whether or not the challenged ballots are sufficient in number to affect
the results of the election. A person filing objections by facsimile
pursuant to Sec. 102.114(f) shall also file an original for the
Agency's records, but failure to do so shall not affect the validity of
the filing by facsimile, if otherwise proper. In addition, extra copies
need not be filed if the filing is by facsimile pursuant to Sec.
102.114(f). The Regional Director will cause a copy of the objections to
be served on each of the other parties to the proceeding. Within 7 days
after the filing of objections, or such additional time as the Regional
Director may allow, the party filing objections shall furnish to the
Regional Director the evidence available to it to support the
objections.
(b) If no objections are filed within the time set forth above, if
the challenged ballots are insufficient in number to affect the results
of the election, and if no runoff election is to be held pursuant to
Sec. 102.70, the regional director shall forthwith issue to the parties
a certification of the results of the election, including certification
of representative where appropriate, with the same force and effect as
if issued by the Board, and the proceeding will thereupon be closed.
(c)(1) If timely objections are filed to the conduct of the election
or to conduct affecting the results of the election, or if the
challenged ballots are sufficient in number to affect the results of the
election, the regional director shall, consistent with the provisions of
Sec. 102.69(d), initiate an investigation, as required, of such
objections or challenges.
(2) If a consent election has been held pursuant to Sec. 102.62(b),
the regional director shall prepare and cause to be served on the
parties a report on challenged ballots or on objections, or on both,
including his recommendations, which report, together with the tally of
ballots, he shall forward to the Board in Washington, DC. Within 14 days
from the date of issuance of the report on challenged ballots or on
objections, or on both, any party may file with the Board in Washington,
DC, exceptions to such report, with supporting documents as permitted by
Sec. 102.69(g)(3) and/or a supporting brief if desired. Within 7 days
from the last date on which exceptions and any supporting documents and/
or supporting brief may be filed, or such further period as the Board
may allow, a party opposing the exceptions may file an answering brief,
with supporting documents as permitted by Sec. 102.69(g)(3) if desired,
with the Board in Washington, DC. If no exceptions are filed to such
report, the Board, upon the expiration of the period for filing such
exceptions, may decide the matter forthwith upon the record or may make
other disposition of the case. The report on challenged ballots may be
consolidated with the report on objections in appropriate cases.
(3) If the election has been conducted pursuant to a direction of
election issued following any proceeding under Sec. 102.67, the
regional director may (i) issue a report on objections or on challenged
ballots, or on both, as in the case of a consent election pursuant to
paragraph (b) of Sec. 102.62, or (ii) exercise his authority to decide
the case and issue a decision disposing of the issues, and directing
appropriate action or certifying the results of the election.
(4) If the regional director issues a report on objections and
challenges, the parties shall have the rights set forth in paragraph
(c)(2) of this section and in Sec. 102.69(f); if the regional director
issues a decision, the parties shall have the rights set forth in Sec.
102.67 to the extent consistent herewith, including the right to submit
documents supporting the request for review or opposition thereto as
permitted by Sec. 102.69(g)(3).
(d) In issuing a report on objections or challenged ballots, or
both, following proceedings under Sec. Sec. 102.62(b) or 102.67, or in
issuing a decision on objections or challenged ballots, or both,
following proceedings under Sec. 102.67, the
[[Page 66]]
regional director may act on the basis of an administrative
investigation or upon the record of a hearing before a hearing officer.
Such hearing shall be conducted with respect to those objections or
challenges which the regional director concludes raise substantial and
material factual issues.
(e) Any hearing pursuant to this section shall be conducted in
accordance with the provisions of Sec. Sec. 102.64, 102.65, and 102.66,
insofar as applicable, except that, upon the close of such hearing, the
hearing officer shall, if directed by the regional director, prepare and
cause to be served on the parties a report resolving questions of
credibility and containing findings of fact and recommendations as to
the disposition of the issues. In any case in which the regional
director has directed that a report be prepared and served, any party
may, within 14 days from the date of issuance of such report, file with
the regional director the original and one copy, which may be a carbon
copy, of exceptions to such report, with supporting brief if desired. A
copy of such exceptions, together with a copy of any brief filed, shall
immediately be served on the other parties and a statement of service
filed with the regional director. Within 7 days from the last date on
which exceptions and any supporting brief may be filed, or such further
time as the regional director may allow, a party opposing the exceptions
may file an answering brief with the regional director. An original and
one copy, which may be a carbon copy, shall be submitted. A copy of such
answering brief shall immediately be served on the other parties and a
statement of service filed with the regional director. If no exceptions
are filed to such report, the regional director, upon the expiration of
the period for filing such exceptions, may decide the matter forthwith
upon the record or may make other disposition of the case.
(f) In a case involving a consent election held pursuant to Sec.
102.62(b), if exceptions are filed, either to the report on challenged
ballots or on objections, or on both if it be a consolidated report, and
it appears to the Board that such exceptions do not raise substantial
and material issues with respect to the conduct or results of the
election, the Board may decide the matter forthwith upon the record or
may make other disposition of the case. If it appears to the Board that
such exceptions raise substantial and material factual issues, the Board
may direct the regional director or other agent of the Board to issue
and cause to be served on the parties a notice of hearing on said
exceptions before a hearing officer. The hearing shall be conducted in
accordance with the provisions of Sec. Sec. 102.64, 102.65, and 102.66
insofar as applicable. Upon the close of the hearing the agent
conducting the hearing, if directed by the Board, shall prepare and
cause to be served on the parties a report resolving questions of
credibility and containing findings of fact and recommendations to the
Board as to the disposition of the challenges or objections, or both if
it be a consolidated report. In any case in which the Board has directed
that a report be prepared and served, any party may within 14 days from
the date of issuance of the report on challenged ballots or on
objections, or on both, file with the Board in Washington, DC.,
exceptions to such report, with supporting brief if desired. Within 7
days from the last date on which exceptions and any supporting brief may
be filed, or such further period as the Board may allow, a party
opposing the exceptions may file an answering brief with the Board in
Washington, DC. If no exceptions are filed to such report, the Board,
upon the expiration of the period for filing such exceptions, may decide
the matter forthwith upon the record or may make other disposition of
the case. The Board shall thereupon proceed pursuant to Sec. 102.67:
Provided, however, That in any with an unfair labor practice case for
purposes of hearing the provisions of Sec. 102.46 of these rules shall
govern with respect to the filing of exceptions or an answering brief to
the exceptions to the administrative law judge's decision.
(g)(1)(i) In a proceeding pursuant to this section in which a
hearing is held, the record in the case shall consist of the notice of
hearing, motions, rulings, orders, stenographic report of the hearing,
stipulations, exhibits, together with the objections to the conduct of
the election or to conduct affecting the
[[Page 67]]
results of the election, any report on such objections, any report on
challenged ballots, exceptions to any such report, any briefs or other
legal memoranda submitted by the parties, the decision of the regional
director, if any, and the record previously made as defined in Sec.
102.68. Materials other than those set out above shall not be a part of
the record.
(ii) In a proceeding pursuant to this section in which no hearing is
held, the record shall consist of the objections to the conduct of the
election or to conduct affecting the results of the election, any report
on objections or on challenged ballots and any exceptions to such a
report, any regional director's decision on objections or challenged
ballots and any request for review of such a decision, any documentary
evidence, excluding statements of witnesses, relied upon by the regional
director in his decision or report, any briefs or other legal memoranda
submitted by the parties, and any other motions, rulings or orders of
the regional director. Materials other than those set out above shall
not be a part of the record, except as provided in paragraph (g)(3) of
this section.
(2) Immediately upon issuance of a report on objections or
challenges, or both, upon issuance by the regional director of an order
transferring the case to the Board, or upon issuance of an order
granting a request for review by the Board, the regional director shall
transmit to the Board the record of the proceeding as defined in
paragraph (g) (1) of this section.
(3) In a proceeding pursuant to this section in which no hearing is
held, a party filing exceptions to a regional director's report on
objections or challenges, a request for review of a regional director's
decision on objections or challenges, or any opposition thereto, may
support its submission to the Board by appending thereto copies of
documentary evidence, including copies of any affidavits, it has timely
submitted to the regional director and which were not included in the
report or decision. Documentary evidence so appended shall there upon
become part of the record in the proceeding. Failure to timely submit
such documentary evidence to the regional director, or to append that
evidence to its submission to the Board in the representation proceeding
as provided above, shall preclude a party from replying on such evidence
in any subsequent related unfair labor proceeding.
(h) In any such case in which the regional director or the Board,
upon a ruling on challenged ballots, has directed that such ballots be
opened and counted and a revised tally of ballots issued, and no
objection to such revised tally is filed by any party within 7 days
after the revised tally of ballots has been made available, the regional
director shall forthwith issue to the parties certification of the
results of the election, including certifications of representative
where appropriate, with the same force and effect as if issued by the
Board. The proceeding shall thereupon be closed.
(i)(1) The action of the regional director in issuing a notice of
hearing on objections or challenged ballots, or both, following
proceedings under Sec. 102.62(b) shall constitute a transfer of the
case to the Board, and the provisions of Sec. 102.65(c) shall apply
with respect to special permission to appeal to the Board from any such
direction of hearing.
(2) Exceptions, if any, to the hearing officer's report or to the
administrative law judge's decision, and any answering brief to such
exceptions, shall be filed with the Board in Washington, DC, in
accordance with paragraph (f) of this section.
(j)(1) All documents filed with the Board under the provisions of
this section shall be filed in eight copies, double spaced, on 8\1/2\-
by 11-inch paper, and shall be printed or otherwise legibly duplicated.
Carbon copies of typewritten materials will not be accepted. Briefs in
support of exceptions or answering briefs shall not exceed 50 pages in
length, exclusive of subject index and table of cases and other
authorities cited, unless permission to exceed that limit is obtained
from the Board by motion, setting forth the reasons therefor, filed not
less than 5 days, including Saturdays, Sundays, and holidays, prior to
the date the brief is due. Where any brief filed pursuant to this
[[Page 68]]
section exceeds 20 pages, it shall contain a subject index with page
references and an alphabetical table of cases and other authorities
cited.
(2) The party filing with the Board exceptions to a report, a
supporting brief, or an answering brief shall serve a copy thereof on
the other parties and shall file a copy with the regional director. A
statement of such service shall be filed with the Board together with
the document.
(3) Requests for extensions of time to file exceptions to a report,
supporting briefs, or answering briefs, as permitted by this section,
shall be filed with the Board on the Regional Director, as the case may
be. The party filing the request for an extension of time shall serve a
copy thereof on the other parties and, if filed with the Board, or the
Regional Director. A statement of such service shall be filed with the
document.
[38 FR 3961, Feb. 8, 1973, as amended at 46 FR 45923, Sept. 15, 1981; 47
FR 40772, Sept. 15, 1982; 47 FR 42569, Sept. 28, 1982; 51 FR 23747, July
1, 1986; 51 FR 32919, Sept. 17, 1986; 56 FR 49144, Sept. 27, 1991; 60 FR
56235, Nov. 8, 1995]
Sec. 102.70 Runoff election.
(a) The regional director shall conduct a runoff election, without
further order of the Board, when an election in which the ballot
provided for not less than three choices (i.e., at least two
representatives and ``neither'') results in no choice receiving a
majority of the valid ballots cast and no objections are filed as
provided in Sec. 102.69. Only one runoff shall be held pursuant to this
section.
(b) Employees who were eligible to vote in the election and who are
in an eligible category on the date of the runoff election shall be
eligible to vote in the runoff election.
(c) The ballot in the runoff election shall provide for a selection
between the two choices receiving the largest and second largest number
of votes.
(d) In the event the number of votes cast in an inconclusive
election in which the ballot provided for a choice among two or more
representatives and ``neither'' or ``none'' is equally divided among the
several choices; or in the event the number of ballots cast for one
choice in such election is equal to the number cast for another of the
choices but less than the number cast for the third choice, the regional
director shall declare the first election a nullity and shall conduct
another election, providing for a selection from among the three choices
afforded in the original ballot; and he shall thereafter proceed in
accordance with paragraphs (a), (b), and (c) of this section. In the
event two or more choices receive the same number of ballots and another
choice receives no ballots and there are no challenged ballots that
would affect the results of the election, and if all eligible voters
have cast valid ballots, there shall be no runoff election and a
certification of results of election shall be issued. Only one such
further election pursuant to this paragraph may be held.
(e) Upon the conclusion of the runoff election, the provisions of
Sec. 102.69 shall govern, insofar as applicable.
[26 FR 3891, May 4, 1961]
Sec. 102.71 Dismissal of petition; refusal to proceed with petition;
requests for review by the Board of action of the regional director.
(a) If, after a petition has been filed and at any time prior to the
close of hearing, it shall appear to the regional director that no
further proceedings are warranted, the regional director may dismiss the
petition by administrative action and shall so advise the petitioner in
writing, setting forth a simple statement of the procedural or other
grounds for the dismissal, with copies to the other parties to the
proceeding. Any party may obtain a review of such action by filing a
request therefor with the Board in Washington, DC, in accordance with
the provisions of paragraph (c) of this section. A request for review
from an action of a regional director pursuant to this subsection may be
granted only upon one or more of the following grounds:
(1) That a substantial question of law or policy is raised because
of (i) the absence of, or (ii) a departure from, officially reported
Board precedent.
(2) There are compelling reasons for reconsideration of an important
Board rule or policy.
[[Page 69]]
(3) The request for review is accompanied by documentary evidence
previously submitted to the regional director raising serious doubts as
to the regional director's factual findings, thus indicating that there
are factual issues which can best be resolved upon the basis of a record
developed at a hearing.
(4) The regional director's action is, on its face, arbitrary or
capricious.
(5) The petition raises issues which can best be resolved upon the
basis of a record developed at a hearing.
(b) Where the regional director dismisses a petition or directs that
the proceeding on the petition be held in abeyance, and such action is
taken because of the pendency of concurrent unresolved charges of unfair
labor practices, and the regional director, upon request, has so
notified the parties in writing, any party may obtain a review of the
regional director's action by filing a request therefor with the Board
in Washington, DC, in accordance with the provisions of paragraph (c) of
this section. A review of an action of a regional director pursuant to
this subsection may be granted only upon one or more of the following
grounds:
(1) That a substantial question of law or policy is raised because
of (i) the absence of, or (ii) a departure from, officially reported
Board precedent.
(2) There are compelling reasons for reconsideration of an important
Board rule or policy.
(3) The regional director's action is, on its face, arbitrary or
capricious.
(c) A request for review must be filed with the Board in Washington,
DC, and a copy filed with the regional director and copies served on all
the other parties within 14 days of service of the notice of dismissal
or notification that the petition is to be held in abeyance. The request
shall be submitted in eight copies and shall contain a complete
statement setting forth facts and reasons upon which the request is
based. Such request shall be printed or otherwise legibly duplicated:
Provided, however, That carbon copies of typewritten materials will not
be accepted. Requests for an extension of time within which to file the
request for review shall be filed with the Board in Washington, DC, and
a statement of service shall accompany such request.
[39 FR 4080, Feb. 1, 1974, as amended at 40 FR 6204, Feb. 10, 1975; 51
FR 23748, July 1, 1986]
Sec. 102.72 Filing petition with general counsel; investigation upon motion of
general counsel; transfer of petition and proceeding from region to general counsel
or to another region; consolidation of proceedings in same region; severance; procedure
before general counsel in cases over which he has assumed jurisdiction.
(a) Whenever it appears necessary in order to effectuate the
purposes of the Act, or to avoid unnecessary costs of delay, the general
counsel may permit a petition to be filed with him in Washington, DC, or
may, at any time after a petition has been filed with a regional
director pursuant to Sec. 102.60, order that such petition and any
proceeding that may have been instituted with respect thereto:
(1) Be transferred to and continued before him, for the purpose of
investigation or consolidation with any other proceeding which may have
been instituted in a regional office or with him; or
(2) Be consolidated with any other proceeding which may have been
instituted in the same region; or
(3) Be transferred to and continued in any other region, for the
purpose of investigation or consolidation with any proceeding which may
have been instituted in or transferred to such region; or
(4) Be severed from any other proceeding with which it may have been
consolidated pursuant to this section.
(b) The provisions of Sec. Sec. 102.60 to 102.71, inclusive, shall,
insofar as applicable, apply to proceedings before the general counsel
pursuant to this section, and the powers granted to regional directors
in such provisions shall, for the purpose of this section, be reserved
to and exercised by the general counsel. After the transfer of any
petition and any proceeding which may have been instituted in respect
thereto from one region to another pursuant to this section, the
provisions of this subpart shall, insofar as applicable, govern such
petition and such proceedings as if the petition has originally been
filed
[[Page 70]]
in the region to which the transfer was made.
(c) The regional director may exercise the powers in paragraph
(a)(2) and (4) of this section with respect to proceedings pending in
his region.
[32 FR 9550, July 1, 1967]
Subpart D_Procedure for Unfair Labor Practice and Representation Cases
Under Sections 8(b)(7) and 9(c) of the Act
Sec. 102.73 Initiation of proceedings.
Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of section 8(b)(7) of the Act, the
regional director shall investigate such charges, giving it the priority
specified in subpart G of this part.
Sec. 102.74 Complaint and formal proceedings.
If it appears to the regional director that the charge has merit,
formal proceedings in respect thereto shall be instituted in accordance
with the procedures described in Sec. Sec. 102.15 to 102.51, inclusive,
insofar as they are applicable, and insofar as they are not inconsistent
with the provisions of this subpart. If it appears to the regional
director that issuance of a complaint is not warranted, he shall decline
to issue a complaint, and the provisions of Sec. 102.19, including the
provisions for appeal to the general counsel, shall be applicable unless
an election has been directed under Sec. Sec. 102.77 and 102.78, in
which event the provisions of Sec. 102.81 shall be applicable.
Sec. 102.75 Suspension of proceedings on the charge where timely petition
is filed.
If it appears to the regional director that issuance of a complaint
may be warranted but for the pendency of a petition under section 9(c)
of the Act, which has been filed by any proper party within a reasonable
time not to exceed 30 days from the commencement of picketing, the
regional director shall suspend proceedings on the charge and shall
proceed to investigate the petition under the expedited procedure
provided below, pursuant to the first proviso to subparagraph (C) of
section 8(b)(7) of the Act.
Sec. 102.76 Petition; who may file; where to file; contents.
When picketing of an employer has been conducted for an object
proscribed by section 8(b)(7) of the Act, a petition for the
determination of a question concerning representation of the employees
of such employer may be filed in accordance with the provisions of
Sec. Sec. 102.60 and 102.61, insofar as applicable: Provided, however,
That if a charge under Sec. 102.73 has been filed against the labor
organization on whose behalf picketing has been conducted, the petition
shall not be required to contain a statement that the employer declines
to recognize the petitioner as the representative within the meaning of
section 9(a) of the Act; or that the labor organization is currently
recognized but desires certification under the act; or that the
individuals or labor organizations who have been certified or are
currently recognized by the employer are no longer the representative;
or, if the petitioner is an employer, that one or more individuals or
labor organizations have presented to the petitioner a claim to be
recognized as the exclusive representative of the employees in the unit
claimed to be appropriate.
Sec. 102.77 Investigation of petition by regional director; directed
election.
(a) Where a petition has been filed pursuant to Sec. 102.76 the
regional director shall make an investigation of the matters and
allegations set forth therein. Any party, and any individual or labor
organization purporting to act as representative of the employees
involved and any labor organization on whose behalf picketing has been
conducted as described in section 8(b)(7)(C) of the Act may present
documentary and other evidence relating to the matters and allegations
set forth in the petition.
(b) If after the investigation of such petition or any petition
filed under subpart C of these rules, and after the investigation of the
charge filed pursuant to Sec. 102.73, it appears to the regional
director that an expedited election under section 8(b)(7)(C) is
warranted, and that the policies of the act
[[Page 71]]
would be effectuated thereby, he shall forthwith proceed to conduct an
election by secret ballot of the employees in an appropriate unit, or
make other disposition of the matter: Provided, however, That in any
case in which it appears to the regional director that the proceeding
raises questions which cannot be decided without a hearing, he may issue
and cause to be served on the parties, individuals, and labor
organizations involved a notice of hearing before a hearing officer at a
time and place fixed therein. In this event, the method of conducting
the hearing and the procedure following, including transfer of the case
to the Board, shall be governed insofar as applicable by Sec. Sec.
102.63 to 102.68, inclusive, except that the parties shall not file
briefs without special permission of the regional director or the Board,
as the case may be, but shall, however, state their respective legal
positions upon the record at the close of the hearing, and except that
any request for review of a decision of the regional director shall be
filed promptly after the issuance of such decision.
[24 FR 9102, Nov. 7, 1959, as amended at 26 FR 3892, May 4, 1961]
Sec. 102.78 Election procedure; method of conducting balloting;
postballoting procedure.
If no agreement such as that provided in Sec. 102.79 has been made,
the regional director shall fix the time and place of the election,
eligibility requirements for voting, and other arrangements for the
balloting. The method of conducting the balloting and the postballoting
procedure shall be governed, insofar as applicable, by the provisions of
Sec. Sec. 102.69 and 102.70 except that the labor organization on whose
behalf picketing has been conducted may not have its name removed from
the ballot without the consent of the regional director and except that
the regional director's rulings on any objections or challenged ballots
shall be final unless the Board grants special permission to appeal from
the regional director's rulings. Any request for such permission shall
be filed promptly, in writing, and shall briefly state the grounds
relied upon. The party requesting review shall immediately serve a copy
thereof on each other party. A request for review shall not operate as a
stay of the regional director's rulings unless so ordered by the Board.
Sec. 102.79 Consent-election agreements.
Where a petition has been duly filed, the parties involved may,
subject to the approval of the regional director, enter into an
agreement governing the method of conducting the election as provided
for in Sec. 102.62(a), insofar as applicable.
Sec. 102.80 Dismissal of petition; refusal to process petition under
expedited procedure.
(a) If, after a petition has been filed pursuant to the provisions
of Sec. 102.76, and prior to the close of the hearing, it shall appear
to the regional director that further proceedings in respect thereto in
accordance with the provisions of Sec. 102.77 are not warranted, he may
dismiss the petition by administrative action, and the action of the
regional director shall be final, subject to a prompt appeal to the
Board on special permission which may be granted by the Board. Upon such
appeal the provisions of Sec. 102.71 shall govern insofar as
applicable. Such appeal shall not operate as a stay unless specifically
ordered by the Board.
(b) If it shall appear to the regional director that an expedited
election is not warranted but that proceedings under subpart C of this
part are warranted, he shall so notify the parties in writing with a
simple statement of the grounds for his decision.
(c) Where the regional director, pursuant to Sec. Sec. 102.77 and
102.78, has determined that a hearing prior to election is not required
to resolve the issues raised by the petition and has directed an
expedited election, any party aggrieved may file a request with the
Board for special permission to appeal from such determination. Such
request shall be filed promptly, in writing, and shall briefly state the
grounds relied upon. The party requesting such appeal shall immediately
serve a copy thereof on each other party. Should the Board grant the
requested permission to appeal, such action shall not, unless
specifically ordered by the Board, operate
[[Page 72]]
as a stay of any action by the regional director.
[24 FR 9102, Nov. 7, 1959, as amended at 26 FR 3892, May 4, 1961]
Sec. 102.81 Review by the general counsel of refusal to proceed on charge;
resumption of proceedings upon charge held during pendency of petition; review
by the general counsel of refusal to proceed on related charge.
(a) Where an election has been directed by the regional director or
the Board in accordance with the provisions of Sec. Sec. 102.77 and
102.78, the regional director shall decline to issue a complaint on the
charge, and he shall so advise the parties in writing, accompanied by a
simple statement of the procedural or other grounds for his action. The
person making the charge may obtain a review of such action by filing an
appeal with the general counsel in Washington, DC, and filing a copy of
the appeal with the regional director, within 7 days from the service of
the notice of such refusal by the regional director. In all other
respects the appeal shall be subject to the provisions of Sec. 102.19.
Such appeal shall not operate as a stay of any action by the regional
director.
(b) Where an election has not been directed and the petition has
been dismissed in accordance with the provisions of Sec. 102.80, the
regional director shall resume investigation of the charge and shall
proceed in accordance with Sec. 102.74.
(c) If in connection with an 8(b)(7) proceeding, unfair labor
practice charges under other sections of the act have been filed and the
regional director upon investigation has declined to issue a complaint
upon such charges, he shall so advise the parties in writing,
accompanied by a simple statement of the procedural or other grounds for
his action. The person making such charges may obtain a review of such
action by filing an appeal with the general counsel in Washington, DC,
and filing a copy of the appeal with the regional director, within 7
days from the service of the notice of such refusal by the regional
director. In all other respects the appeal shall be subject to the
provisions of Sec. 102.19.
[32 FR 9550, July 1, 1967, as amended at 51 FR 23749, July 1, 1986]
Sec. 102.82 Transfer, consolidation, and severance.
The provisions of Sec. Sec. 102.33 and 102.72, respecting the
filing of a charge or petition with the general counsel and the
transfer, consolidation, and severance of proceedings, shall apply to
proceedings under this subpart, except that the provisions of Sec. Sec.
102.73 to 102.81, inclusive, shall govern proceedings before the general
counsel.
Subpart E_Procedure for Referendum Under Section 9(e) of the Act
Sec. 102.83 Petition for referendum under section 9(e)(1) of the Act; who
may file; where to file; withdrawal.
A petition to rescind the authority of a labor organization to make
an agreement requiring as a condition of employment membership in such
labor organization may be filed by an employee or group of employees on
behalf of 30 percent or more of the employees in a bargaining unit
covered by such an agreement. The petition shall be in writing and
signed, and either shall be sworn to before a notary public, Board
agent, or other person duly authorized by law to administer oaths and
take acknowledgments or shall contain a declaration by the person
signing it, under the penalties of the Criminal Code, that its contents
are true and correct to the best of his knowledge and belief. One
original of the petition shall be filed with the Regional Director
wherein the bargaining unit exists or, if the unit exists in two or more
Regions, with the Regional Director for any of such Regions. A person
filing a petition by facsimile pursuant to Sec. 102.114(f) shall also
file an original for the Agency's records, but failure to do so shall
not affect the validity of the filing by facsimile, if otherwise proper.
The petition may be withdrawn only with the approval of the Regional
Director with whom such petition was filed, except that if the
proceeding has been transferred to the Board, pursuant to Sec. 102.67,
the petition may be
[[Page 73]]
withdrawn only with the consent of the Board. Upon approval of the
withdrawal of any petition the case shall be closed.
[67 FR 658, Jan. 7, 2002]
Sec. 102.84 Contents of petition to rescind authority.
(a) The name of the employer.
(b) The address of the establishments involved.
(c) The general nature of the employer's business.
(d) A description of the bargaining unit involved.
(e) The name and address of the labor organization whose authority
it is desired to rescind.
(f) The number of employees in the unit.
(g) Whether there is a strike or picketing in progress at the
establishment involved and, if so, the approximate number of employees
participating, and the date such strike or picketing commenced.
(h) The date of execution and of expiration of any contract in
effect covering the unit involved.
(i) The name and address of the person designated to accept service
of documents for petitioners.
(j) Any other relevant facts.
Sec. 102.85 Investigation of petition by regional director; consent referendum;
directed referendum.
Where a petition has been filed pursuant to Sec. 102.83 and it
appears to the regional director that the petitioner has made an
appropriate showing, in such form as the regional director may
determine, that 30 percent or more of the employees within a unit
covered by an agreement between their employer and a labor organization
requiring membership in such labor organization desire to rescind the
authority of such labor organization to make such an agreement, he shall
proceed to conduct a secret ballot of the employees involved on the
question whether they desire to rescind the authority of the labor
organization to make such an agreement with their employer: Provided,
however, That in any case in which it appears to the regional director
that the proceeding raises questions which cannot be decided without a
hearing, he may issue and cause to be served on the parties a notice of
hearing before a hearing officer at a time and place fixed therein. The
regional director shall fix the time and place of the election,
eligibility requirements for voting, and other arrangements of the
balloting, but the parties may enter into an agreement, subject to the
approval of the regional director, fixing such arrangements. In any such
consent agreements, provision may be made for final determination of all
questions arising with respect to the balloting by the regional director
or by the Board.
[26 FR 3892, May 4, 1961]
Sec. 102.86 Hearing; posthearing procedure.
The method of conducting the hearing and the procedure following the
hearing, including transfer of the case to the Board, shall be governed,
insofar as applicable, by Sec. Sec. 102.63 to 102.68, inclusive.
Sec. 102.87 Method of conducting balloting; postballoting procedure.
The method of conducting the balloting and the postballoting
procedure shall be governed by the provisions of Sec. 102.69, insofar
as applicable.
Sec. 102.88 Refusal to conduct referendum; appeal to Board.
If, after a petition has been filed, and prior to the close of the
hearing, it shall appear to the regional director that no referendum
should be conducted, he shall dismiss the petition by administrative
action. Such dismissal shall be in writing and accompanied by a simple
statement of the procedural or other grounds. The petitioner may obtain
a review of such action by filing a request therefor with the Board in
Washington, DC, and filing a copy of such request with the regional
director and the other parties within 14 days from the service of notice
of such dismissal. The request shall contain a complete statement
setting forth the facts and reasons upon which the request is based.
[51 FR 30636, Aug. 28, 1986]
[[Page 74]]
Subpart F_Procedure To Hear and Determine Disputes Under Section 10(k)
of the Act
Sec. 102.89 Initiation of proceedings.
Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of paragraph (4)(D) of section 8(b) of
the Act, the regional director of the office in which such charge is
filed or to which it is referred shall, as soon as possible after the
charge has been filed, serve upon the parties a copy of the charge
together with a notice of the filing of the charge and shall investigate
such charge and if it is deemed appropriate to seek injunctive relief of
a district court pursuant to section 10(1) of the Act, he shall give it
priority over all other cases in the office except other cases under
section 10(1) and cases of like character.
[26 FR 7546, Aug. 15, 1961]
Sec. 102.90 Notice of filing of charge; notice of hearing; hearing;
proceedings before the Board; briefs; determination of dispute.
If it appears to the Regional Director that the charge has merit and
the parties to the dispute have not submitted satisfactory evidence to
the Regional Director that they have adjusted, or have agreed upon
methods for the voluntary adjustment of, the dispute out of which such
unfair labor practice shall have arisen, he shall cause to be served on
all parties to such dispute a notice of hearing under section 10(k) of
the Act before a hearing officer at a time and place fixed therein which
shall be not less than 10 days after service of the notice of the filing
of said charge. The notice of hearing shall contain a simple statement
of the issues involved in such dispute. Such notice shall be issued
promptly, and, in cases in which it is deemed appropriate to seek
injunctive relief pursuant to section 10(l) of the Act, shall normally
be issued within 5 days of the date upon which injunctive relief is
first sought. Hearings shall be conducted by a hearing officer, and the
procedure shall conform, insofar as applicable, to the procedure set
forth in Sec. Sec. 102.64 to 102.68, inclusive. Upon the close of the
hearing, the proceeding shall be transferred to the Board and the Board
shall proceed either forthwith upon the record, or after oral argument,
or the submission of briefs, or further hearing, to determine the
dispute or make other disposition of the matter. Should any party desire
to file a brief with the Board, eight copies thereof shall be filed with
the Board in Washington, DC, within 7 days after the close of the
hearing: Provided, however, That in cases involving the national defense
and so designated in the notice of hearing no briefs shall be filed, and
the parties, after the close of the evidence, may argue orally upon the
record their respective contentions and positions: Provided further,
That, in cases involving the national defense, upon application for
leave to file briefs expeditiously made to the Board in Washington, DC,
after the close of the hearing, the Board may for good cause shown grant
such leave and thereupon specify the time for filing. Immediately upon
such filing, a copy shall be served on the other parties. Such brief
shall be printed or otherwise legibly duplicated: Provided, however,
That carbon copies of typewritten matter shall not be filed and if
submitted will not be accepted. Requests for extension of time in which
to file a brief under authority of this section shall be in writing with
copies thereof served on the other parties. No reply brief may be filed
except upon special leave of the Board.
[56 FR 49144, Sept. 27, 1991]
Sec. 102.91 Compliance with determination; further proceedings.
If, after issuance of the determination by the Board, the parties
submit to the regional director satisfactory evidence that they have
complied with the determination, the regional director shall dismiss the
charge. If no satisfactory evidence of compliance is submitted, the
regional director shall proceed with the charge under paragraph (4)(D)
of section 8(b) and section 10 of the Act and the procedure prescribed
in Sec. Sec. 102.9 to 102.51, inclusive, shall, insofar as applicable,
govern:
[[Page 75]]
Provided, however, That if the Board determination is that employees
represented by a charged union are entitled to perform the work in
dispute, the regional director shall dismiss the charge as to that union
irrespective of whether the employer has complied with that
determination.
[36 FR 9133, May 20, 1971]
Sec. 102.92 Review of determination.
The record of the proceeding under section 10(k) and the
determination of the Board thereon shall become a part of the record in
such unfair labor practice proceeding and shall be subject to judicial
review, insofar as it is in issue, in proceedings to enforce or review
the final order of the Board under section 10 (e) and (f) of the Act.
Sec. 102.93 Alternative procedure.
If, either before or after service of the notice of hearing, the
parties submit to the regional director satisfactory evidence that they
have adjusted the dispute, the regional director shall dismiss the
charge and shall withdraw the notice of hearing if notice has issued.
If, either before or after issuance of notice of hearing, the parties
submit to the regional director satisfactory evidence that they have
agreed upon methods for the voluntary adjustment of the dispute, the
regional director shall defer action upon the charge and shall withdraw
the notice of hearing if notice has issued. If it appears to the
regional director that the dispute has not been adjusted in accordance
with such agreed-upon methods and that an unfair labor practice within
the meaning of section 8(b)(4)(D) of the Act is occurring or has
occurred, he may issue a complaint under Sec. 102.15, and the procedure
prescribed in Sec. Sec. 102.9 to 102.51, inclusive, shall, insofar as
applicable, govern; and Sec. Sec. 102.90 to 102.92, inclusive, are
inapplicable: Provided, however, That if an agreed-upon method for
voluntary adjustment results in a determination that employees
represented by a charged union are entitled to perform the work in
dispute, the regional director shall dismiss the charge as to that union
irrespective of whether the employer has complied with that
determination.
[36 FR 9133, May 20, 1971]
Subpart G_Procedure in Cases Under Section 10(j), (l), and (m) of the
Act
Sec. 102.94 Expeditious processing of section 10(j) cases.
(a) Whenever temporary relief or a restraining order pursuant to
section 10(j) of the Act has been procured by the Board, the complaint
which has been the basis for such temporary relief or restraining order
shall be heard expeditiously and the case shall be given priority by the
Board in its successive steps following the issuance of the complaint
(until ultimate enforcement or dismissal by the appropriate circuit
court of appeals) over all other cases except cases of like character
and cases under section 10 (l) and (m) of the Act.
(b) In the event the trial examiner hearing a complaint, concerning
which the Board has procured temporary relief or a restraining order
pursuant to section 10(j), recommends a dismissal in whole or in part of
such complaint, the chief law officer shall forthwith suggest to the
district court which issued such temporary relief or restraining order
the possible change in circumstances arising out of the findings and
recommendations of the trial examiner.
Sec. 102.95 Priority of cases pursuant to section 10(l) and (m) of the
Act.
(a) Whenever a charge is filed alleging the commission of an unfair
labor practice within the meaning of paragraph (4) (A), (B), (C), or (7)
of section 8(b) of the Act, or section 8(e) of the Act, the regional
office in which such charge is filed or to which it is referred shall
give it priority over all other cases in the office except cases of like
character and cases under paragraph (4)(D) of section 8(b) of the Act in
which it is deemed appropriate to seek injunctive relief of a district
court pursuant to section 10(l) of the Act.
(b) Whenever a charge is filed alleging the commission of an unfair
labor
[[Page 76]]
practice within the meaning of subsection (a)(3) or (b)(2) of section 8
of the Act, the regional office in which such charge is filed or to
which it is referred shall give it priority over all other cases in the
office except cases of like character and cases under section 10(l) of
the Act.
Sec. 102.96 Issuance of complaint promptly.
Whenever the regional attorney or other Board officer to whom the
matter may be referred seeks injunctive relief of a district court
pursuant to section 10(l) of the Act, a complaint against the party or
parties sought to be enjoined, covering the same subject matter as such
application for injunctive relief, shall be issued promptly, normally
within 5 days of the date upon which such injunctive relief is first
sought, except in those cases under section 10(l) of the Act in which
the procedure set forth in Sec. Sec. 102.90 to 102.92, inclusive, is
deemed applicable.
Sec. 102.97 Expeditious processing of section 10(l) and (m) cases in
successive stages.
(a) Any complaint issued pursuant to Sec. 102.95(a) or, in a case
in which it is deemed appropriate to seek injunctive relief of a
district court pursuant to section 10(l) of the Act, any complaint
issued pursuant to Sec. 102.93 or notice of hearing issued pursuant to
Sec. 102.90 shall be heard expeditiously and the case shall be given
priority in such successive steps following its issuance (until ultimate
enforcement or dismissal by the appropriate circuit court of appeals)
over all cases except cases of like character.
(b) Any complaint issued pursuant to Sec. 102.95(b) shall be heard
expeditiously and the case shall be given priority in its successive
steps following its issuance (until ultimate enforcement or dismissal by
the appropriate circuit court of appeals) over all cases except cases of
like character and cases under section 10(l) of the Act.
Subpart H_Declaratory Orders and Advisory Opinions Regarding Board
Jurisdiction
Sec. 102.98 Petition for advisory opinion; who may file; where to file.
Whenever an agency or court of any State or territory is in doubt
whether the Board would assert jurisdiction over the parties in a
proceeding pending before such agency or court, the agency or court may
file a petition with the Board for an advisory opinion on whether the
Board would decline to assert jurisdiction over the parties before the
agency or the court (1) on the basis of its current standards, or (2)
because the employing enterprise is not within the jurisdiction of the
National Labor Relations Act.
[24 FR 9102, Nov. 7, 1959, as amended at 51 FR 15613, Apr. 25, 1986; 61
FR 65182, Dec. 11, 1996]
Sec. 102.99 Contents of petition for advisory opinion; contents of
request for administrative advice.
(a) A petition for an advisory opinion, when filed by an agency or
court of a State or territory, shall allege the following:
(1) The name of the agency or court.
(2) The names of the parties to the proceeding and the docket
number.
(3) The nature of the proceeding, and the need for the Board's
opinion on the jurisdictional issue to the proceeding.
(4) The general nature of the business involved in the proceeding
and, where appropriate, the nature of and details concerning the
employing enterprise.
(5) The findings of the agency or court or, in the absence of
findings, a statement of the evidence relating to the commerce
operations of such business and, where appropriate, to the nature of the
employing enterprise.
(b) Eight copies of such petition or request shall be submitted to
the Board in Washington, DC. Such petition or request shall be printed
or otherwise legibly duplicated. Carbon copies of typewritten matter
will not be accepted.
[24 FR 9102, Nov. 7, 1959, as amended at 51 FR 15613, Apr. 25, 1986; 61
FR 65182, Dec. 11, 1996]
[[Page 77]]
Sec. 102.100 Notice of petition; service of petition.
Upon the filing of a petition the petitioner shall immediately serve
in the manner provided by Sec. 102.114(a) of these rules a copy of the
petition on all parties to the proceeding and on the director of the
Board's regional office having jurisdiction over the territorial area in
which such agency or court is located. A statement of service shall be
filed with the petition as provided by Sec. 102.114(b) of the rules.
[51 FR 23749, July 1, 1986]
Sec. 102.101 Response to petition; service of response.
Any party served with such petition may, within 14 days after
service thereof, respond to the petition, admitting or denying its
allegations. Eight copies of such response shall be filed with the Board
in Washington, DC. Such response shall be printed or otherwise legibly
duplicated: Provided however, That carbon copies of typewritten
materials will not be accepted. Such response shall immediately be
served on all other parties to the proceeding, and a statement of
service shall be filed in accordance with the provisions of Sec.
102.114(b) of these rules.
[51 FR 23749, July 1, 1986]
Sec. 102.102 Intervention.
Any person desiring to intervene shall make a motion for
intervention, stating the grounds upon which such person claims to have
an interest in the petition. Eight copies of such motion shall be filed
with the Board in Washington, DC. Such motion shall be printed or
otherwise legibly duplicated: Provided, however, That carbon copies of
typewritten matter shall not be filed and if submitted will not be
accepted.
[29 FR 15922, Nov. 28, 1964]
Sec. 102.103 Proceedings before the Board; briefs; advisory opinions.
The Board shall thereupon proceed, upon the petition, responses, and
submission of briefs, to determine whether, on the facts before it, the
commerce operations of the employer involved are such that it would or
would not assert jurisdiction. Such determination shall be in the form
of an advisory opinion and shall be served upon the parties. No briefs
shall be filed except upon special permission of the Board.
Sec. 102.104 Withdrawal of petition.
The petitioner may withdraw his petition at any time prior to
issuance of the Board's advisory opinion.
Sec. 102.105 Petitions for declaratory orders; who may file; where to file;
withdrawal.
Whenever both an unfair labor practice charge and a representation
case relating to the same employer are contemporaneously on file in a
regional office of the Board, and the general counsel entertains doubt
whether the Board would assert jurisdiction over the employer involved,
he may file a petition with the Board for a declaratory order disposing
of the jurisdictional issue in the cases. Such petition may be withdrawn
at any time prior to the issuance of the Board's order.
Sec. 102.106 Contents of petition for declaratory order.
A petition for a declaratory order shall allege the following:
(a) The name of the employer.
(b) The general nature of the employer's business.
(c) The case numbers of the unfair labor practice and representation
cases.
(d) The commerce data relating to the operations of such business.
(e) Whether any proceeding involving the same subject matter is
pending before an agency or court of a State or territory. Eight copies
of the petition shall be filed with the Board in Washington, DC. Such
petition shall be printed or otherwise legibly duplicated: Provided,
however, That carbon copies of typewritten matter shall not be filed and
if submitted will not be accepted.
(f) Seven copies of the petition shall be filed with the Board in
Washington, DC. Such petition shall be printed or otherwise legibly
duplicated: Provided, however, That carbon copies of typewritten matter
shall not be filed and if submitted will not be accepted.
[24 FR 9102, Nov. 7, 1959, as amended at 27 FR 5095, May 30, 1962; 29 FR
15922, Nov. 28, 1964]
[[Page 78]]
Sec. 102.107 Notice of petition, service of petition.
Upon filing a petition, the general counsel shall immediately serve
a copy thereof on all parties and shall file a statement of service as
provided by Sec. 102.114(b) of these rules.
[51 FR 23749, July 1, 1986]
Sec. 102.108 Response to petition; service of response.
Any party to the representation or unfair labor practice case may,
within 14 days after service thereof, respond to the petition, admitting
or denying its allegations. Eight copies of such response shall be filed
with the Board in Washington, DC. Such response shall be printed or
otherwise legibly duplicated: Provided, however, That carbon copies of
typewritten materials will not be accepted. Such response shall be
served on the general counsel and all other parties, and a statement of
service shall be filed as provided by Sec. 102.114(b) of these rules.
[51 FR 23749, July 1, 1986]
Sec. 102.109 Intervention.
Any person desiring to intervene shall make a motion for
intervention, stating the grounds upon which such person claims to have
an interest in the petition. Eight copies of such motion shall be filed
with the Board in Washington, DC. Such motion shall be printed or
otherwise legibly duplicated: Provided, however, That carbon copies of
typewritten matter shall not be filed and if submitted will not be
accepted.
[29 FR 15922, Nov. 28, 1964]
Sec. 102.110 Proceedings before the Board; briefs; declaratory orders.
The Board shall thereupon proceed, upon the petition, responses, and
submission of briefs, to determine whether, on the facts before it, the
commerce operations of the employer involved are such that it would or
would not assert jurisdiction over them. Such determination shall be
made by a declaratory order, with like effect as in the case of other
orders of the Board, and shall be served upon the parties. Any party
desiring to file a brief shall file eight copies with the Board in
Washington, DC, with a statement that copies thereof are being served
simultaneously on the other parties.
[29 FR 15922, Nov. 28, 1964]
Subpart I_Service and Filing of Papers
Sec. 102.111 Time computation.
(a) In computing any period of time prescribed or allowed by these
rules, the day of the act, event, or default after which the designated
period of time begins to run is not to be included. The last day of the
period so computed is to be included, unless it is a Saturday, Sunday,
or a legal holiday, in which event the period runs until the official
closing time of the receiving office on the next Agency business day
(see appendix A to this part 102 setting forth the official business
hours of the Agency's several offices). When the period of time
prescribed or allowed is less than 7 days, intermediate Saturdays,
Sundays, and holidays shall be excluded in the computation.
(b) When the Act or any of these rules require the filing of a
motion, brief, exception, or other paper in any proceeding, such
document must be received by the Board or the officer or agent
designated to receive such matter before the official closing time of
the receiving office on the last day of the time limit, if any, for such
filing or extension of time that may have been granted (see appendix A
to the part 102 setting forth the official business hours of the
Agency's several offices). A request for an extension of time to file a
document shall be filed no later than the official closing time of the
receiving office on the date on which the document is due. Requests for
extensions of time filed within three days of the due date must be
grounded upon circumstances not reasonably foreseeable in advance. In
construing this section of the rules, the Board will accept as timely
filed any document which is hand delivered to the Board on or before the
official closing time of the receiving office on the due date or
postmarked on the day before (or earlier than) the due date; documents
which are postmarked on or after the due date are untimely.
``Postmarking''
[[Page 79]]
shall include timely depositing the document with a delivery service
that will provide a record showing that the document was tendered to the
delivery service in sufficient time for delivery by the due date, but in
no event later than the day before the due date. Provided, however, The
following documents must be received on or before the official closing
time of the receiving office on the last day for filing:
(1) Charges filed pursuant to section 10(b) of the Act (see also
Sec. 102.14).
(2) Applications for awards and fees and other expenses under the
Equal Access to Justice Act.
(3) Petitions to revoke subpoenas.
(4) Requests for extensions of time to file any document for which
such an extension may be granted.
(c) The following documents may be filed within a reasonable time
after the time prescribed by these rules only upon good cause shown
based on excusable neglect and when no undue prejudice would result:
(1) In unfair labor practice proceedings, motions, exceptions,
answers to a complaint or a backpay specification, and briefs; and
(2) In representation proceedings, exceptions, requests for review,
motions, briefs, and any responses to any of these documents. A party
seeking to file such documents beyond the time prescribed by these rules
shall file, along with the document, a motion that states the grounds
relied on for requesting permission to file untimely. The specific facts
relied on to support the motion shall be set forth in affidavit form and
sworn to by individuals with personal knowledge of the facts. The time
for filing any document responding to the untimely document shall not
commence until the date a ruling issues accepting the untimely document.
In addition, cross-exceptions shall be due within 14 days, or such
further period as the Board may allow, from the date a ruling issues
accepting the untimely filed documents.
[56 FR 49144, Sept. 27, 1991 as amended at 57 FR 4157, Feb. 4, 1992; 57
FR 9977, Mar. 23, 1992; 67 FR 70696, Nov. 26, 2002]
Sec. 102.112 Date of service; date of filing.
The date of service shall be the day when the matter served is
deposited in the United States mail, or is deposited with a private
delivery service that will provide a record showing the date the
document was tendered to the delivery service, or is delivered in
person, as the case may be. Where service is made by facsimile
transmission, the date of service shall be the date on which
transmission is received. The date of filing shall be the day when the
matter is required to be received by the Board as provided by Sec.
102.111.
[60 FR 56235, Nov. 8, 1995]
Sec. 102.113 Methods of service of process and papers by the Agency;
proof of service.
(a) Service of complaints and compliance specifications. Complaints
and accompanying notices of hearing, compliance specifications, and
amendments to either complaints or to compliance specifications, shall
be served upon all parties either personally or by registered or
certified mail or by telegraph, or by leaving a copy thereof at the
principal office or place of business of the person required to be
served.
(b) Service of final orders and decisions. Final orders of the Board
in unfair labor practice cases and administrative law judges' decisions
shall be served upon all parties either personally or by registered or
certified mail or by telegraph, or by leaving a copy thereof at the
principal office or place of business of the person required to be
served.
(c) Service of subpoenas. Subpoenas shall be served upon the
recipient either personally or by registered or certified mail or by
telegraph, or by leaving a copy thereof at the principal office or place
of business of the person required to be served.
(d) Service of other documents. Other documents may be served by the
Agency by any of the foregoing methods as well as regular mail or
private delivery service. Such other documents may be served by
facsimile transmission with the permission of the person receiving the
document.
(e) Proof of service. In the case of personal service, or delivery
to a principal office or place of business, the verified return by the
individual so serving the same, setting forth the manner of such
service, shall be proof of the same. In
[[Page 80]]
the case of service by mail or telegraph, the return post office receipt
or telegraph receipt therefor when registered or certified and mailed or
when telegraphed shall be proof of service of the same. However, these
methods of proof of service are not exclusive; any sufficient proof may
be relied upon to establish service.
(f) Service upon representatives of parties. Whenever these rules
require or permit the service of pleadings or other papers upon a party,
a copy shall also be served on any attorney or other representative of
the party who has entered a written appearance in the proceeding on
behalf of the party. If a party is represented by more than one attorney
or representative, service upon any one of such persons in addition to
the party shall satisfy this requirement. Service by the Board or its
agents of any documents upon any such attorney or other representative
may be accomplished by any means of service permitted by these rules,
including regular mail.
[60 FR 56236, Nov. 8, 1995]
Sec. 102.114 Filing and service of papers by parties; form of papers;
manner and proof of filing or service; electronic filings.
(a) Service of papers by a party on other parties may be made
personally, or by registered mail, certified mail, regular mail, or
private delivery service. Service of papers by a party on other parties
by any other means, including facsimile transmission, is permitted only
with the consent of the party being served. Unless otherwise specified
elsewhere in these rules, service on all parties shall be made in the
same manner as that utilized in filing the paper with the Board, or in a
more expeditious manner; however, when filing with the Board is done by
hand, the other parties shall be promptly notified of such action by
telephone, followed by service of a copy in a manner designed to insure
receipt by them by the close of the next business day. The provisions of
this section apply to the General Counsel after a complaint has issued,
just as they do to any other party, except to the extent that the
provisions of Sec. Sec. 102.113(a) or 102.113(c) provide otherwise.
(b) When service is made by registered mail, or by certified mail,
the return post office receipt shall be proof of service. When service
is made by a private delivery service, the receipt from that service
showing delivery shall be proof of service. However, these methods of
proof of service are not exclusive; any sufficient proof may be relied
upon to establish service.
(c) Failure to comply with the requirements of this section relating
to timeliness of service on other parties shall be a basis for either:
(1) A rejection of the document; or
(2) Withholding or reconsidering any ruling on the subject matter
raised by the document until after service has been made and the served
party has had reasonable opportunity to respond.
(d) Papers filed with the Board, General Counsel, Regional Director,
Administrative Law Judge, or Hearing Officer shall be typewritten or
otherwise legibly duplicated on 8\1/2\ by 11-inch plain white paper,
shall have margins no less than one inch on each side, shall be in a
typeface no smaller than 12 characters-per-inch (elite or the
equivalent), and shall be double spaced (except that quotations and
footnotes may be single spaced). Carbon copies shall not be filed and
will not be accepted. Nonconforming papers may, at the Agency's
discretion, be rejected.
(e) The person or party serving the papers or process on other
parties in conformance with Sec. 102.113 and paragraph (a) of this
section shall submit a written statement of service thereof to the Board
stating the names of the parties served and the date and manner of
service. Proof of service as defined in paragraph (a) of this section
shall be required by the Board only if subsequent to the receipt of the
statement of service a question is raised with respect to proper
service. Failure to make proof of service does not affect the validity
of the service.
(f) Unfair labor practice charges, petitions in representation
proceedings, objections to elections, and requests for extensions of
time for filing documents will be accepted by the Agency if transmitted
to the facsimile machine of the appropriate office. Other documents,
except those specifically prohibited in paragraph (g) of this section,
[[Page 81]]
will be accepted by the Agency if transmitted to the facsimile machine
of the office designated to receive them only with advance permission
from the receiving office which may be obtained by telephone. Advance
permission must be obtained for each such filing. At the discretion of
the receiving office, the person submitting a document by facsimile may
be required simultaneously to serve the original and any required copies
on the office by overnight delivery service. When filing a charge, a
petition in a representation proceeding, or election objections by
facsimile transmission pursuant to this section, receipt of the
transmitted document by the Agency constitutes filing with the Agency. A
failure to timely file or serve a document will not be excused on the
basis of a claim that transmission could not be accomplished because the
receiving machine was off-line or busy or unavailable for any other
reason.
(g) Facsimile transmissions of the following documents will not be
accepted for filing: Showing of Interest in Support of Representation
Petitions, including Decertification Petitions; Answers to Complaints;
Exceptions or Cross-Exceptions; Briefs; Requests for Review of Regional
Director Decisions; Administrative Appeals from Dismissal of Petitions
or Unfair Labor Practice Charges; Objections to Settlements; EAJA
Applications; Motions for Default Judgment; Motions for Summary
Judgment; Motions to Dismiss; Motions for Reconsideration; Motions to
Clarify; Motions to Reopen the Record; Motions to Intervene; Motions to
Transfer, Consolidate or Sever; or Petitions for Advisory Opinions.
Facsimile transmissions in contravention of this rule will not be filed.
(h) Documents and other papers filed through facsimile transmission
shall be served on all parties in the same way as used to serve the
office where filed, or in a more expeditious manner, in conformance with
paragraph (a) of this section. Thus, facsimile transmission shall be
used for this purpose whenever possible. When a party cannot be served
by this method, or chooses not to accept service by facsimile as
provided for in paragraph (a) of this section, the party shall be
notified personally or by telephone of the substance of the transmitted
document and a copy of the document shall be served by personal service
or overnight delivery service.
(i) The Agency's Web site (http://www.nlrb.gov) contains certain
forms that parties or other persons are permitted to file with the
Agency electronically. Parties or other persons choosing to utilize
those forms to file documents electronically are permitted do so by
following the instructions described on the Web site, notwithstanding
any contrary provisions elsewhere in these rules. In the event the
document being filed electronically is required to be served on another
party to a proceeding, the other party shall be notified by telephone of
the substance of the transmitted document and a copy of the document
shall be served by personal service no later than the next day, by
overnight delivery service, or, with the permission of the party
receiving the document, by facsimile transmission.
[60 FR 56236, Nov. 8, 1995, as amended at 67 FR 70695, Nov. 26, 2002; 69
FR 1677, Jan. 12, 2004]
Subpart J_Certification and Signature of Documents
Sec. 102.115 Certification of papers and documents.
The executive secretary of the Board or, in the event of his absence
or disability, whosoever may be designated by the Board in his place and
stead shall certify copies of all papers and documents which are a part
of any of the files or records of the Board as may be necessary or
desirable from time to time.
Sec. 102.116 Signature of orders.
The executive secretary or the associate executive secretary or, in
the event of their absence or disability, whosoever may be designated by
the Board in their place and stead is hereby authorized to sign all
orders of the Board.
[[Page 82]]
Subpart K_Records and Information
Sec. 102.117 Board materials and formal documents available for public inspection
and copying; requests for described records; time limit for response; appeal from
denial of request; fees for document search and duplication; files and records not subject to inspection.
(a)(1) This subpart contains the rules that the National Labor
Relations Board follows in processing requests for records under the
Freedom of Information Act (FOIA), 5 U.S.C. 552. Information routinely
provided to the public as part of a regular Agency activity (for
example, press releases issued by the Division of Information) may be
provided to the public without following this subpart. Such records may
also be made available in the Agency's reading room in paper form, as
well as electronically to facilitate public access. As a matter of
policy, the Agency will consider making discretionary disclosures of
records or information exempt under the FOIA whenever disclosure would
not foreseeably harm an interest protected by a FOIA exemption, but this
policy does not create any right enforceable in court.
(2) The following materials are available to the public for
inspection and copying during normal business hours:
(i) All final opinions and orders made in the adjudication of cases;
(ii) Statements of policy and interpretations that are not published
in the Federal Register;
(iii) Administrative staff manuals and instructions that affect any
member of the public (excepting those establishing internal operating
rules, guidelines, and procedures for investigation, trial, and
settlement of cases);
(iv) A current index of final opinions and orders in the
adjudication of cases;
(v) A record of the final votes of each Member of the Board in every
Agency proceeding;
(vi) Records which have been released and which the Agency
determines, because of their subject matter, have become or are likely
to become the subject of subsequent requests for substantially the same
records; and
(vii) A general index of records referred to in paragraph (a)(2)(vi)
of this section. Items in paragraphs (a)(2)(i) through (vii) of this
section are available for inspection and copying during normal business
hours at the Board's offices in Washington, DC. Items in paragraph
(a)(2)(iii) of this section are also available for inspection and
copying during normal business hours at each Regional, Subregional, and
Resident Office of the Board. Final opinions and orders made by Regional
Directors in the adjudication of representation cases pursuant to the
delegation of authority from the Board under section 3(b) of the Act are
available to the public for inspection and copying in the original
office where issued. Records encompassed within paragraphs (a)(2)(i)
through (a)(2)(vii) of this section created on or after November 1,
1996, will be made available by November 1, 1997, to the public by
computer telecommunications or, if computer telecommunications means
have not been established by the Agency, by other electronic means. The
Agency shall maintain and make available for public inspection and
copying a current subject matter index of all reading room materials
which shall be updated regularly, at least quarterly, with respect to
newly included records. Copies of the index are available upon request
for a fee of the direct cost of duplication. The index of FOIA-processed
records referred to in paragraph (a)(2)(vii) of this section will be
available by computer telecommunications by December 31, 1999.
(3) Copies of forms prescribed by the board for the filing of
charges under section 10 alleging violations of the Act under section 8,
or petitions under section 9, may be obtained without charge from any
Regional, Subregional, or Resident Office of the Board. These forms are
available electronically through the Agency's World Wide Web site (which
can be found at http://www.nlrb.gov).
(4) The Agency shall, on or before February 1, 1998, and annually
thereafter, submit a FOIA report covering the preceding fiscal year to
the Attorney General of the United States. The
[[Page 83]]
report shall include those matters required by 5 U.S.C. 552(e), and
shall be made available electronically.
(b)(1) The formal documents constituting the record in a case or
proceeding are matters of official record and, until officially
destroyed pursuant to applicable statutory authority, are available to
the public for inspection and copying during normal business hours at
the appropriate Regional Office of the Board or at the Board's office in
Washington, DC, as the case may be. If the case or proceeding has been
closed for more than 2 years, the appropriate Regional Office of the
Board or the Board's office in Washington, DC, upon request, will
contact the Federal Records Center to obtain the records.
(2) The Executive Secretary shall certify copies of all formal
documents upon request made a reasonable time in advance of need and
payment of lawfully prescribed costs.
(c)(1) Requests for the inspection and copying of records other than
those specified in paragraphs (a) and (b) of this section must be in
writing and must reasonably describe the record in a manner to permit
its identification and location. The envelope and the letter, or the
cover sheet of any fax transmittal, should be clearly marked to indicate
that it contains a request for records under the Freedom of Information
Act (FOIA). The request must contain a specific statement assuming
financial liability in accordance with paragraph (d)(2) of this section
for the direct costs of responding to the request. If the request is
made for records in a Regional or Subregional Office of the Agency, it
should be made to that Regional or Subregional Office; if for records in
the Office of the General Counsel and located in Washington, DC, it
should be made to the Freedom of Information Officer, Office of the
General Counsel, Washington, DC; if for records in the offices the Board
or the Inspector General in Washington, DC, to the Executive Secretary
of the Board, Washington, DC. Requests made to other than the
appropriate office will be forwarded to that office by the receiving
office, but in that event the applicable time limit for response set
forth in paragraph (c)(2)(i) of this section shall be calculated from
the date of receipt by the appropriate office. Requesters may be given
an opportunity to discuss their request so that requests may be modified
to meet the requirements of this section. In the case of records
generated by the Inspector General and in possession of another office,
or in the possession of the Inspector General but generated by another
office of the Agency, the request may be referred to the generating
office for decision. If the Agency determines that a request does not
reasonably describe records, it may contact the requester to inform the
requester either what additional information is needed or why the
request is insufficient. Similar referrals may, in the Agency's
discretion, be made between other offices.
(2)(i) The Agency ordinarily shall respond to requests according to
their order of receipt. Effective October 2, 1997, an initial response
shall be made within 20 working days (i.e. exempting Saturdays, Sundays,
and legal public holidays) after the receipt of a request for a record
under this part by the Freedom of Information Officer or his designee.
An appeal under paragraph (c)(2)(v) of this section shall be decided
within 20 days (excepting Saturdays, Sundays, and legal public holidays)
after the receipt of such an appeal by the Office of Appeals or the
Chairman of the Board. Because the Agency has been able to process its
requests without a backlog of cases, the Agency will not institute a
multitrack processing system.
(ii) Requests and appeals will be taken out of order and given
expedited treatment whenever it is determined that they involve:
Circumstances in which the lack of expedited treatment could reasonably
be expected to pose an imminent threat to the life or physical safety of
an individual; an urgency to inform the public about an actual or
alleged federal government activity, if made by a person primarily
engaged in disseminating information; the loss of substantial due
process rights; or a matter of widespread and exceptional media interest
in which there exist possible questions about the government's integrity
which affect public confidence. A request for expedited
[[Page 84]]
processing may be made at the time of the initial request for records or
at any later time. A requester who seeks expedited processing must
submit a statement, certified to be true and correct to the best of that
person's knowledge and belief, explaining in detail the basis for
requesting expedited processing. The formality of certification may be
waived as a matter of administrative discretion. Within ten calendar
days of its receipt of a request for expedited processing, the Agency
shall decide whether to grant it and shall notify the requester of the
decision. Once the determination has been made to grant expedited
processing, the request shall be given priority and shall be processed
as soon as practicable. If a request for expedited processing is denied,
the Agency shall act expeditiously on any appeal of that decision.
(iii) Within 20 working days after receipt of a request by the
appropriate office of the Agency a determination shall be made whether
to comply with such request, and the person making the request shall be
notified in writing of that determination. In the case of requests made
to the Executive Secretary for Inspector General Records, that
determination shall be made by the Inspector General. In the case of all
other requests, that determination shall be made by the General
Counsel's office, the Regional or Subregional Office, or the Executive
Secretary's office, as the case may be. If the determination is to
comply with the request, the records shall be made promptly available to
the person making the request and, at the same time, a statement of any
charges due in accordance with the provisions of paragraph (d)(2) of
this section will be provided. If the determination is to deny the
request in any respect, the requester shall be notified in writing of
that determination. Adverse determinations, or denials of requests,
consist of: A determination to withhold any requested record in whole or
in part; a determination that a requested record does not exist or
cannot be located; a determination that what has been requested is not a
record subject to the Act; a determination on any disputed fee matter,
including a denial of a request for a fee waiver or reduction or
placement in a particular fee category; and a denial of a request for
expedited treatment. For a determination to deny a request in any
respect, the notification shall set forth the reasons therefor and the
name and title or position of each person responsible for the denial,
shall provide an estimate of the volume of records or information
withheld, in number of pages or in some other reasonable form of
estimation (this estimate does not need to be provided if the volume is
otherwise indicated through deletions on records disclosed in part, or
if providing an estimate would harm an interest protected by an
applicable exemption), and shall notify the person making the request of
the right to appeal the adverse determination under provisions of
paragraph (c)(2)(v) of this section.
(iv) Business information obtained by the Agency from a submitter
will be disclosed under the FOIA only consistent with the procedures
established in this section.
(A) For purposes of this section:
(1) Business information means commercial or financial information
obtained by the Agency from a submitter that may be protected from
disclosure under Exemption 4 of the FOIA.
(2) Submitter means any person or entity from whom the Agency
obtains business information, directly or indirectly. The term includes
corporations; state, local, and tribal governments; and foreign
governments.
(B) A submitter of business information will use good faith efforts
to designate, by appropriate markings, either at the time of submission
or at a reasonable time thereafter, any portions of its submission that
it considers to be protected from disclosure under Exemption 4. These
designations will expire ten years after the date of the submission
unless the submitter requests, and provides justification for, a longer
designation period. The Agency shall provide a submitter with prompt
written notice of a FOIA request or administrative appeal that seeks its
business information wherever required under paragraph (c)(2)(iv)(C) of
this section, except as provided in paragraph (c)(2)(iv)(F) of this
section, in order to give the submitter an opportunity to object to
disclosure of any specified
[[Page 85]]
portion of that information under paragraph (c)(2)(iv)(D) of this
section. The notice shall either describe the business information
requested or include copies of the requested records or record portions
containing the information. When notification of a voluminous number of
submitters is required, notification may be made by posting or
publishing the notice in a place reasonably likely to accomplish
notification.
(C) Notice shall be given to a submitter wherever: the information
has been designated in good faith by the submitter as information
considered protected from disclosure under Exemption 4; or the Agency
has reason to believe that the information may be protected from
disclosure under Exemption 4.
(D) The Agency will allow a submitter a reasonable time to respond
to the notice described in paragraph (c)(2)(iv)(B) of this section. If a
submitter has any objection to disclosure, it is required to submit a
detailed written statement. The statement must specify all grounds for
withholding any portion of the information under any exemption of the
FOIA and, in the case of Exemption 4, it must show why the information
is a trade secret or commercial or financial information that is
privileged or confidential. In the event that a submitter fails to
respond to the notice within the time specified in it, the submitter
will be considered to have no objection to disclosure of the
information. Information provided by a submitter under this paragraph
may itself be subject to disclosure under the FOIA.
(E) The Agency shall consider a submitter's objections and specific
grounds for nondisclosure in deciding whether to disclose business
information. Whenever the Agency decides to disclose business
information over the objection of a submitter, the Agency shall give the
submitter written notice, which shall include: A statement of the
reason(s) why each of the submitter's disclosure objections was not
sustained; a description of the business information to be disclosed;
and a specified disclosure date, which shall be a reasonable time
subsequent to the notice.
(F) The notice requirements of paragraphs (c)(2)(iv)(B) and (E) of
this section shall not apply if: The Agency determines that the
information should not be disclosed; the information lawfully has been
published or has been officially made available to the public;
disclosure of the information is required by statute (other than the
FOIA) or by a regulation issued in accordance with the requirements of
Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or the designation
made by the submitter under paragraph (c)(2)(iv)(B) of this section
appears obviously frivolous-except that, in such a case, the Agency
shall, within a reasonable time prior to a specified disclosure date,
give the submitter written notice of any final decision to disclose the
information.
(G) Whenever a requester files a lawsuit seeking to compel the
disclosure of business information, the Agency shall promptly notify the
submitter.
(H) Whenever the Agency provides a submitter with notice and an
opportunity to object to disclosure under paragraph (c)(2)(iv)(B) of
this section, the Agency shall also notify the requester(s). Whenever
the Agency notifies a submitter of its intent to disclose requested
information under paragraph (c)(2)(iv)(E) of this section, the Agency
shall also notify the requester(s). Whenever a submitter files a lawsuit
seeking to prevent the disclosure of business information, the Agency
shall notify the requester(s).
(v) An appeal from an adverse determination made pursuant to
paragraph (c)(2)(iii) of this section must be filed within 20 working
days of the receipt by the person making the request of the notification
of the adverse determination where the request is denied in its
entirety; or, in the case of a partial denial, within 20 working days of
the receipt of any records being made available pursuant to the request.
If the adverse determination was made in a Regional Office, a
Subregional Office, or by the Freedom of Information Officer, Office of
the General Counsel, the appeal shall be filed with the General Counsel
in Washington, DC. If the adverse determination was made by the
Executive Secretary of the Board or the Inspector General, the appeal
shall
[[Page 86]]
be filed with the Chairman of the Board in Washington, DC. Within 20
working days after receipt of an appeal the General Counsel or the
Chairman of the Board, as the case may be, shall make a determination
with respect to such appeal and shall notify the person making the
request in writing. If the determination is to comply with the request,
the record shall be made promptly available to the person making the
request upon receipt of payment of any charges due in accordance with
the provisions of paragraph (d)(2) of this section. If on appeal the
denial of the request for records is upheld in whole or in part, the
person making the request shall be notified of the reasons for the
determination, the name and title or position of each person responsible
for the denial, and the provisions for judicial review of that
determination under the provisions of 5 U.S.C. 552(4)(B). Even though no
appeal is filed from a denial in whole or in part of a request for
records by the person making the request, the General Counsel or the
Chairman of the Board may, without regard to the time limit for filing
of an appeal, sua sponte initiate consideration of an adverse
determination under this appeal procedure by written notification to the
person making the request. In such event the time limit for making the
determination shall commence with the issuance of such notification. An
adverse determination by the General Counsel or the Chairman of the
Board, as the case may be, will be the final action of the Agency. If
the requester wishes to seek review by a court of any adverse
determination, the requester must first appeal it under this section.
(vi) In unusual circumstances as specified in this paragraph, the
time limits prescribed in either paragraph (c)(2)(i) or (iv) of this
section may be extended by written notice to the person requesting the
record setting forth the reasons for such extension and the date on
which a determination is expected to be dispatched. No such notice or
notices shall specify a date or dates that would result in an extension
or extensions totaling more than 10 working days with respect to a
particular request, except as set forth below in this paragraph. As used
in this paragraph, unusual circumstances means, but only to the extent
reasonably necessary to the proper processing of the particular request:
(A) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(B) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request;
(C) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or with two or more components of the
Agency having a substantial subject matter interest in the request.
Where the extension is for more than ten working days, the Agency shall
provide the requester with an opportunity either to modify the request
so that it may be processed within the time limits or to arrange an
alternative time period for processing the request or a modified
request.
(vii) The Agency shall preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized by
title 44 of the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records will not be
disposed of while they are the subject of a pending request, appeal, or
lawsuit under the FOIA.
(d)(1) For purposes of this section, the following definitions
apply:
(i) Direct costs means those expenditures which are actually
incurred in searching for and duplicating and, in the case of commercial
use requests, reviewing documents to respond to a FOIA request.
(ii) Search refers to the process of looking for and retrieving
records or information responsive to a request. It includes page-by-page
or line-by-line identification of material within documents and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. The Agency shall ensure
that searches are done in the most
[[Page 87]]
efficient and least expensive manner reasonably possible.
(iii) Duplication refers to the process of making a copy of a
record, or the information contained in it, necessary to respond to a
FOIA request. Such copies can take the form of paper, microfilm,
videotape, audiotape, or electronic records (e.g., magnetic tape or
disk), among others. The Agency shall honor a requester's specified
preference of form or format of disclosure if the record is readily
reproducible with reasonable efforts in the requested form or format by
the office responding to the request.
(iv) Review refers to the process of examining documents located in
response to a request that is for commercial use to determine whether
any portion of it is exempt from disclosure. It includes processing any
documents for disclosure, e.g., doing all that is necessary to redact
and prepare them for disclosure. Review time includes time spent
considering any formal objection to disclosure made by a business
submitter under paragraph (c)(2)(iv) of this section, but does not
include time spent resolving general legal or policy issues regarding
the application of exemptions.
(v) Commercial use request refers to a request from or on behalf of
a person who seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person on
whose behalf the request is made, which can include furthering those
interests through litigation.
(vi) Educational institution refers to a preschool, a public or
private elementary or secondary school, an institution of undergraduate
higher education, an institution of graduate higher education, an
institution of professional education, or an institution of vocational
education, that operates a program of scholarly research. To be in this
category, a requester must show that the request is authorized by and is
made under the auspices of a qualifying institution and that the records
are not sought for a commercial use but are sought to further scholarly
research.
(vii) Representative of the news media refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term news means information that is
about current events or that would be of current interest to the public.
Examples of news media entities include television or radio stations
broadcasting to the public at large and publishers of periodicals (but
only in instances where they can qualify as disseminators of ``news'')
who make their products available for purchase or subscription by the
general public. For ``freelance'' journalists to be regarded as working
for a news organization, they must demonstrate a solid basis for
expecting publication through that organization. A publication contract
would be the clearest proof, but the Agency shall also look to the past
publication record of a requester in making this determination. To be in
this category, a requester must not be seeking the requested records for
commercial use. However, a request for records supporting the news
dissemination function of the requester shall not be considered to be
for a commercial use.
(viii) Working days, as used in this paragraph, means calendar days
excepting Saturdays, Sundays, and legal holidays.
(2) Persons requesting records from this Agency shall be subject to
a charge of fees for the full allowable direct costs of document search,
review, and duplicating, as appropriate, in accordance with the
following schedules, procedures, and conditions:
(i) Schedule of charges:
(A) For each one-quarter hour or portion thereof of clerical time *
* * $3.10.
(B) For each one-quarter hour or portion thereof of professional
time * * * $9.25.
(C) For each sheet of duplication (not to exceed 8\1/2\ by 14
inches) of requested records * * * $0.12.
(D) All other direct costs of preparing a response to a request
shall be charged to the requester in the same amount as incurred by the
Agency. Such costs shall include, but not be limited to: Certifying that
records are true copies; sending records to requesters or receiving
records from the Federal records storage centers by special methods such
as express mail; and, where applicable, the cost of conducting computer
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searches for information and for providing information in electronic
format.
(ii) Fees incurred in responding to information requests are to be
charged in accordance with the following categories of requesters:
(A) Commercial use requesters will be assessed charges to recover
the full direct costs for searching for, reviewing for release, and
duplicating the records sought. Requesters must reasonably describe the
records sought.
(B) Educational institution requesters will be assessed charges for
the cost of reproduction alone, excluding charges for the first 100
pages. To be eligible for inclusion in this category, requesters must
show that the request is being made under the auspices of a qualifying
institution and that the records are not sought for commercial use, but
are sought in furtherance of scholarly research. Requesters must
reasonably describe the records sought.
(C) Requesters who are representatives of the news media will be
assessed charges for the cost of reproduction alone, excluding charges
for the first 100 pages. To be eligible for inclusion in this category,
a requester must meet the criteria in paragraph (d)(1)(vii) of this
section, and the request must not be made for commercial use. In
reference to this class of requester, a request for records supporting
the news dissemination function of the requester shall not be considered
to be a request that is for commercial use. Requesters must reasonably
describe the records sought.
(D) All other requesters, not elsewhere described, will be assessed
charges to recover the full reasonable direct cost of searching for and
reproducing records that are responsive to the request, except that the
first 100 pages of reproduction and the first 2 hours of search time
shall be furnished without charge. Requesters must reasonably describe
the records sought.
(E) Absent a reasonably based factual showing that a requester
should be placed in a particular user category, fees will be imposed as
provided for in the commercial use requester category.
(iii)(A) In no event shall fees be imposed on any requester when the
total charges are less than $5, which is the Agency's cost of collecting
and processing the fee itself.
(B) If the Agency reasonably believes that a requester or a group of
requesters acting together is attempting to divide a request into a
series of requests for the purpose of avoiding fees, the Agency may
aggregate those requests and charge accordingly. The Agency may presume
that multiple requests of this type made within a 30-day period have
been made in order to avoid fees. Where requests are separated by a
longer period, the Agency will aggregate them only where there exists a
solid basis for determining that aggregation is warranted under all the
circumstances involved. Multiple requests involving unrelated matters
will not be aggregated.
(iv) Documents are to be furnished without charge or at reduced
levels if disclosure of the information is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the Government and is not primarily
in the commercial interest of the requester. Disclosure to data brokers
or others who merely compile and market government information for
direct economic return shall not be presumed to primarily serve the
public interest. A fee waiver or reduction is justified where the public
interest standard is satisfied and that public interest is greater in
magnitude than that of any identified commercial interest in disclosure.
Where only some of the requested records satisfy the requirements for a
waiver of fees, a waiver shall be granted for those records.
(v) If a requester fails to pay chargeable fees that were incurred
as a result of the Agency's processing of the information request,
beginning on the 31st day following the date on which the notification
of charges was sent, the Agency may assess interest charges against the
requester in the manner prescribed in 31 U.S.C. 3717. Where appropriate,
other steps permitted by federal debt collection statutes, including
disclosure to consumer reporting agencies, use of collection agencies,
and offset, will be used by the Agency to encourage payment of amounts
overdue.
(vi) Each request for records shall contain a specific statement
assuming
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financial liability, in full or to a specified maximum amount, for
charges, in accordance with paragraphs (d)(2)(i) and (ii) of this
section, which may be incurred by the Agency in responding to the
request. If the anticipated charges exceed the maximum limit stated by
the person making the request or if the request contains no assumption
of financial liability or charges, the person shall be notified and
afforded an opportunity to assume financial liability. In either case,
the request for records shall not be deemed received for purposes of the
applicable time limit for response until a written assumption of
financial liability is received. The Agency may require a requester to
make an advance payment of anticipated fees under the following
circumstances:
(A) If the anticipated charges are likely to exceed $250, the Agency
shall notify the requester of the likely cost and obtain satisfactory
assurance of full payment when the requester has a history of prompt
payment of FOIA fees, or require an advance payment of an amount up to
the full estimated charges in the case of requesters with no history of
payment.
(B) If a requester has previously failed to pay fees that have been
charged in processing a request within 30 days of the date of the
notification of fees was sent, the requester will be required to pay the
entire amount of fees that are owed, plus interest as provided for in
paragraph (d)(2)(v) of this section, before the Agency will process a
further information request. In addition, the Agency may require advance
payment of fees that the Agency estimates will be incurred in processing
the further request before the Agency commences processing that request.
When the Agency acts under paragraph (d)(2)(vi)(A) or (B) of this
section, the administrative time limits for responding to a request or
an appeal from initial denials will begin to run only after the Agency
has received the fee payments required above.
(vii) Charges may be imposed even though the search discloses no
records responsive to the request, or if records located are determined
to be exempt from disclosure.
(e) Subject to the provisions of Sec. Sec. 102.31(c) and 102.66(c),
all fines, documents, reports, memoranda, and records of the Agency
falling within the exemptions specified in 5 U.S.C. 552(b) shall not be
made available for inspection or copying, unless specifically permitted
by the Board, its Chairman, or its General Counsel.
(f) An individual will be informed whether a system of records
maintained by this Agency contains a record pertaining to such
individual. An inquiry should be made in writing or in person during
normal business hours to the official of this Agency designated for that
purpose and at the address set forth in a notice of a system of records
published by this Agency, in a Notice of Systems of Governmentwide
Personnel Records published by the Office of Personnel Management, or in
a Notice of Governmentwide Systems of Records published by the
Department of Labor. Copies of such notices, and assistance in preparing
an inquiry, may be obtained from any Regional Office of the Board or at
the Board offices at 1099 14th Street, NW., Washington, DC 20570. The
inquiry should contain sufficient information, as defined in the notice,
to identify the record. Reasonable verification of the identity of the
inquirer, as described in paragraph (j) of this section, will be
required to assure that information is disclosed to the proper person.
The Agency shall acknowledge the inquiry in writing within 10 days
(excluding Saturdays, Sundays, and legal public holidays) and, wherever
practicable, the acknowledgment shall supply the information requested.
If, for good cause shown, the Agency cannot supply the information
within 10 days, the inquirer shall within that time period be notified
in writing of the reasons therefor and when it is anticipated the
information will be supplied. An acknowledgment will not be provided
when the information is supplied within the 10-day period. If the Agency
refuses to inform an individual whether a system of records contains a
record pertaining to an individual, the inquirer shall be notified in
writing of that determination and the reasons therefor, and of the
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right to obtain review of that determination under the provisions of
paragraph (k) of this section.
(g) An individual will be permitted access to records pertaining to
such individual contained in any system of records described in the
notice of system of records published by this Agency, or access to the
accounting of disclosures from such records. The request for access must
be made in writing or in person during normal business hours to the
person designated for that purpose and at the address set forth in the
published notice of system of records. The request for access must be
made in writing or in person during normal business hours to the person
designated for that purpose and at the address set forth in the
published notice of system of records. Copies of such notices, and
assistance in preparing a request for access, may be obtained from any
Regional Office of the Board or at the Board offices at 1099 14th
Street, NW., Washington, DC 20570. Reasonable verification of the
identity of the requester, as described in paragraph (j) of this
section, shall be required to assure that records are disclosed to the
proper person. A request for access to records or the accounting of
disclosures from such records shall be acknowledged in writing by the
Agency within 10 days of receipt (excluding Saturdays, Sundays, and
legal public holidays) and, wherever practicable, the acknowledgment
shall inform the requester whether access will be granted and, if so,
the time and location at which the records or accounting will be made
available. If access to the record or accounting is to be granted, the
record or accounting will normally be provided within 30 days (excluding
Saturdays, Sundays, and legal public holidays) of the request, unless
for good cause shown the Agency is unable to do so, in which case the
individual will be informed in writing within that 30-day period of the
reasons therefor and when it is anticipated that access will be granted.
An acknowledgment of a request will not be provided if the record is
made available within the 10-day period. If an individual's request for
access to a record or an accounting of disclosure from such a record
under the provisions of this paragraph is denied, the notice informing
the individual of the denial shall set forth the reasons therefor and
advise the individual of the right to obtain a review of that
determination under the provisions of paragraph (k) of this section.
(h) An individual granted access to records pertaining to such
individual contained in a system of records may review all such records.
For that purpose the individual may be accompanied by a person of the
individual's choosing, or the record may be released to the individual's
representative who has written consent of the individual, as described
in paragraph (j) of this section. A first copy of any such record or
information will ordinarily be provided without charge to the individual
or representative in a form comprehensible to the individual. Fees for
any other copies of requested records shall be assessed at the rate of
10 cents for each sheet of duplication.
(i) An individual may request amendment of a record pertaining to
such individual in a system of records maintained by this Agency. A
request for amendment of a record must be in writing and submitted
during normal business hours to the person designated for that purpose
and at the address set forth in the published notice for the system of
records containing the record of which amendment is sought. Copies of
such notices, and assistance in preparing a request for amendment, may
be obtained from any Regional Office of the Board or at the Board
offices at 1099 14th Street, NW., Washington, DC 20570. The requester
must provide verification of identity as described in paragraph (j) of
this section, and the request should set forth the specific amendment
requested and the reason for the requested amendment. The Agency shall
acknowledge in writing receipt of the request within 10 days of receipt
(excluding Saturdays, Sundays, and legal public holidays) and, wherever
practicable, the acknowledgment shall advise the individual of the
determination of the request. If the review of the request for amendment
cannot be completed and a determination made within 10 days, the review
shall
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be completed as soon as possible, normally within 30 days (Saturdays,
Sundays, and legal public holidays excluded) of receipt of the request
unless unusual circumstances preclude completing the review within that
time, in which event the requester will be notified in writing within
that 30-day period of the reasons for the delay and when the
determination of the request may be expected. If the determination is to
amend the record, the requester shall be so notified in writing and the
record shall be amended in accordance with that determination. If any
disclosures accountable under the provisions of 5 U.S.C. 552a(c) have
been made, all previous recipients of the record which was amended shall
be advised of the amendment and its substance. If it is determined that
the request should not be granted, the requester shall be notified in
writing of that determination and of the reasons therefor, and advised
of the right to obtain review of the adverse determination under the
provisions of paragraph (k) of this section.
(j) Verification of the identification of individuals required under
paragraphs (f), (g), (h), and (i) of this section to assure that records
are disclosed to the proper person shall be required by the Agency to an
extent consistent with the nature, location, and sensitivity of the
records being disclosed. Disclosure of a record to an individual in
person will normally be made upon the presentation of acceptable
identification. Disclosure of records by mail may be made on the basis
of the identifying information set forth in the request. Depending on
the nature, location, and sensitivity of the requested record, a signed
notarized statement verifying identity may be required by the Agency.
Proof of authorization as representative to have access to a record of
an individual shall be in writing, and a signed notarized statement of
such authorization may be required by the Agency if the record requested
is of a sensitive nature.
(k)(1) Review may be obtained with respect to:
(i) A refusal, under paragraph (f) or (l) of this section, to inform
an individual if a system of records contains a record concerning that
individual,
(ii) A refusal, under paragraph (g) or (l) of this section, to grant
access to a record or an accounting of disclosure from such a record, or
(iii) A refusal, under paragraph (i) of this section, to amend a
record.
The request for review should be made to the Chairman of the Board if
the system of records is maintained in the office of a Member of the
Board, the office of the Executive Secretary, the office of the
Solicitor, the Division of Information, or the Division of
Administrative Law Judges. Consonant with the provisions of section 3(d)
of the National Labor Relations Act, and the delegation of authority
from the Board to the General Counsel, the request should be made to the
General Counsel if the system of records is maintained by an office of
the Agency other than those enumerated above. Either the Chairman of the
Board or the General Counsel may designate in writing another officer of
the Agency to review the refusal of the request. Such review shall be
completed within 30 days (excluding Saturdays, Sundays, and legal public
holidays) from the receipt of the request for review unless the Chairman
of the Board or the General Counsel, as the case may be, for good cause
shown, shall extend such 30-day period.
(2) If, upon review of a refusal under paragraph (f) or (l), the
reviewing officer determines that the individual should be informed of
whether a system of records contains a record pertaining to that
individual, such information shall be promptly provided. If the
reviewing officer determines that the information was properly denied,
the individual shall be so informed in writing with a brief statement of
the reasons therefor.
(3) If, upon review of a refusal under paragraph (g) or (l), the
reviewing officer determines that access to a record or to an accounting
of disclosures should be granted, the requester shall be so notified and
the record or accounting shall be promptly made available to the
requester. If the reviewing officer determines that the request for
access was properly denied, the individual shall be so informed in
writing with a brief statement of the reasons
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therefor, and of the right to judicial review of that determination
under the provisions of 5 U.S.C. 552a(g)(1)(B).
(4) If, upon review of a refusal under paragraph (i), the reviewing
official grants a request to amend, the requester shall be so notified,
the record shall be amended in accordance with the determination, and,
if any disclosures accountable under the provisions of 5 U.S.C. 552a(c)
have been made, all previous recipients of the record which was amended
shall be advised of the amendment and its substance. If the reviewing
officer determines that the denial of a request for amendment should be
sustained, the Agency shall advise the requester of the determination
and the reasons therefor, and that the individual may file with the
Agency a concise statement of the reason for disagreeing with the
determination, and may seek judicial review of the Agency's denial of
the request to amend the record. In the event a statement of
disagreement is filed, that statement--
(i) Will be made available to anyone to whom the record is
subsequently disclosed together with, at the discretion of the Agency, a
brief statement summarizing the Agency's reasons for declining to amend
the record, and
(ii) Will be supplied, together with any Agency statements, to any
prior recipients of the disputed record to the extent that an accounting
of disclosure was made.
(l) To the extent that portions of system of records described in
notices of Governmentwide systems of records published by the Office of
Personnel Management are identified by those notices as being subject to
the management of an officer of this Agency, or an officer of this
Agency is designated as the official to contact for information, access,
or contents of those records, individual requests for access to those
records, requests for their amendment, and review of denials of requests
for amendment shall be in accordance with the provisions of 5 CFR part
297, subpart A, Sec. 297.101, et seq., as promulgated by the Office of
Personnel Management. To the extent that portions of system of records
described in notices of Governmentwide system of records published by
the Department of Labor are identified by those notices as being subject
to the management of an officer of this Agency, or an officer of this
Agency is designated as the official to contact for information, access,
or contents of those records, individual requests for access to those
records, requests for their amendment, and review of denials of requests
for amendment shall be in accordance with the provisions of this rule.
Review of a refusal to inform an individual whether such a system of
records contains a record pertaining to that individual and review of a
refusal to grant an individual's request for access to a record in such
a system may be obtained in accordance with the provisions of paragraph
(k) of this section.
(m) Pursuant to 5 U.S.C. 552a(j)(2), the system of records
maintained by the Office of the Inspector General of the National Labor
Relations Board that contains Investigative Files shall be exempted from
the provisions of 5 U.S.C. 552a, except subsections (b), (c)(1) and (2),
(e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i), and 29
CFR 102.117(c), (d), (f), (g), (h), (i), (j) and (k), insofar as the
system contains investigatory material compiled for criminal law
enforcement purposes.
(n) Pursuant to 5 U.S.C. 552a(k)(2), the system of records
maintained by the Office of the Inspector General of the National Labor
Relations Board that contains the Investigative Files shall be exempted
from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f)
and 29 CFR 102.117 (c), (d), (f), (g), (h), (i), (j), and (k), insofar
as the system contains investigatory material compiled for law
enforcement purposes not within the scope of the exemption at 29 CFR
102.117(m).
(o) Privacy Act exemptions contained in paragraphs (m) and (n) of
this section are justified for the following reasons:
(1) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of
each disclosure of records available to the individual named in the
record at his/her request. These accountings must state the date,
nature, and purpose of each disclosure of a record and the name and
address of the recipient. Accounting for each disclosure would alert the
subjects of an investigation
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to the existence of the investigation and the fact that they are
subjects of the investigation. The release of such information to the
subjects of an investigation would provide them with significant
information concerning the nature of the investigation and could
seriously impede or compromise the investigation, endanger the physical
safety of confidential sources, witnesses, law enforcement personnel,
and their families and lead to the improper influencing of witnesses,
the destruction of evidence, or the fabrication of testimony.
(2) 5 U.S.C. 552a(c)(4) requires an agency to inform any person or
other agency about any correction or notation of dispute made by the
agency in accordance with subsection (d) of the Act. Since this system
of records is being exempted from subsection (d) of the Act, concerning
access to records, this section is inapplicable to the extent that this
system of records will be exempted from subsection (d) of the Act.
(3) 5 U.S.C. 552a(d) requires an agency to permit an individual to
gain access to records pertaining to him/her, to request amendment to
such records, to request a review of an agency decision not to amend
such records, and to contest the information contained in such records.
Granting access to records in this system of records could inform the
subject of an investigation of an actual or potential criminal
violation, of the existence of that investigation, of the nature and
scope of the information and evidence obtained as to his/her activities,
or of the identity of confidential sources, witnesses, and law
enforcement personnel and could provide information to enable the
subject to avoid detection or apprehension. Granting access to such
information could seriously impede or compromise an investigation,
endanger the physical safety of confidential sources, witnesses, law
enforcement personnel, and their families, lead to the improper
influencing of witnesses, the destruction of evidence, or the
fabrication of testimony, and disclose investigative techniques and
procedures. In addition, granting access to such information could
disclose classified, security-sensitive, or confidential business
information and could constitute an unwarranted invasion of the personal
privacy of others.
(4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required by statute or
by executive order of the President. The application of this provision
could impair investigations and law enforcement because it is not always
possible to detect the relevance or necessity of specific information in
the early stages of an investigation. Relevance and necessity are often
questions of judgment and timing, and it is only after the information
is evaluated that the relevance and necessity of such information can be
established. In addition, during the course of the investigation, the
investigator may obtain information which is incidental to the main
purpose of the investigative jurisdiction of another agency. Such
information cannot readily be segregated. Furthermore, during the course
of the investigation, the investigator may obtain information concerning
the violation of laws other than those which are within the scope of
his/her jurisdiction. In the interest of effective law enforcement, OIG
investigators should retain this information, since it can aid in
establishing patterns of criminal activity and can provide valuable
leads for other law enforcement agencies.
(5) 5 U.S.C. 552a(e)(2) requires an agency to collect information to
the greatest extent practicable directly from the subject individual
when the information may result in adverse determinations about an
individual's rights, benefits, and privileges under Federal programs.
The application of this provision could impair investigations and law
enforcement by alerting the subject of an investigation, thereby
enabling the subject to avoid detection or apprehension, to influence
witnesses improperly, to destroy evidence, or to fabricate testimony.
Moreover, in certain circumstances the subject of an investigation
cannot be required to provide information to investigators and
information must be collected from other sources. Furthermore, it is
often necessary to collect information
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from sources other than the subject of the investigation to verify the
accuracy of the evidence collected.
(6) 5 U.S.C. 552a(e)(3) requires an agency to inform each person
whom it asks to supply information, on a form that can be retained by
the person, of the authority under which the information is sought and
whether disclosure is mandatory or voluntary; of the principal purposes
for which the information is intended to be used; of the routine uses
which may be made of the information; and of the effects on the person,
if any, of not providing all or any part of the requested information.
The application of this provision could provide the subject of an
investigation with substantial information about the nature of that
investigation that could interfere with the investigation. Moreover,
providing such a notice to the subject of an investigation could
seriously impede or compromise an undercover investigation by revealing
its existence and could endanger the physical safety of confidential
sources, witnesses, and investigators by revealing their identities.
(7) 5 U.S.C. 552a(e)(4) (G) and (H) require an agency to publish a
Federal Register notice concerning its procedures for notifying an
individual, at his/her request, if the system of records contains a
record pertaining to him/her, how to gain access to such a record and
how to contest its content. Since this system of records is being
exempted from subsection (f) of the Act, concerning agency rules, and
subsection (d) of the Act, concerning access to records, these
requirements are inapplicable to the extent that this system of records
will be exempt from subsections (f) and (d) of the Act. Although the
system would be exempt from these requirements, OIG has published
information concerning its notification, access, and contest procedures
because, under certain circumstances, OIG could decide it is appropriate
for an individual to have access to all or a portion of his/her records
in this system of records.
(8) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal
Register notice concerning the categories of sources of records in the
system of records. Exemption from this provision is necessary to protect
the confidentiality of the sources of information, to protect the
privacy and physical safety of confidential sources and witnesses, and
to avoid the disclosure of investigative techniques and procedures.
Although the system will be exempt from this requirement, OIG has
published such a notice in broad generic terms.
(9) 5 U.S.C. 552a(e)(5) requires an agency to maintain its records
with such accuracy, relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the individual in making any
determination about the individual. Since the Act defines ``maintain''
to include the collection of information, complying with this provision
could prevent the collection of any data not shown to be accurate,
relevant, timely, and complete at the moment it is collected. In
collecting information for criminal law enforcement purposes, it is not
possible to determine in advance what information is accurate, relevant,
timely, and complete. Facts are first gathered and then placed into a
logical order to prove or disprove objectively the criminal behavior of
an individual. Material which seems unrelated, irrelevant, or incomplete
when collected can take on added meaning or significance as the
investigation progresses. The restrictions of this provision could
interfere with the preparation of a complete investigative report,
thereby impeding effective law enforcement.
(10) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable
efforts to serve notice on an individual when any record on such
individual is made available to any person under compulsory legal
process when such process becomes a matter of public record. Complying
with this provision could prematurely reveal an ongoing criminal
investigation to the subject of the investigation.
(11) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules
which shall establish procedures whereby an individual can be notified
in response to his/her request if any system of records named by the
individual contains a record pertaining to him/her. The application of
this provision could impede or compromise an investigation or
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prosecution if the subject of an investigation were able to use such
rules to learn of the existence of an investigation before it could be
completed. In addition, mere notice of the fact of an investigation
could inform the subject and others that their activities are under or
may become the subject of an investigation and could enable the subjects
to avoid detection or apprehension, to influence witnesses improperly,
to destroy evidence, or to fabricate testimony. Since this system would
be exempt from subsection (d) of the Act, concerning access to records,
the requirements of subsection (f)(2) through (5) of the Act, concerning
agency rules for obtaining access to such records, are inapplicable to
the extent that this system of records will be exempted from subsection
(d) of the Act. Although this system would be exempt from the
requirements of subsection (f) of the Act, OIG has promulgated rules
which establish agency procedures because, under certain circumstances,
it could be appropriate for an individual to have access to all or a
portion of his/her records in this system of records.
(12) 5 U.S.C. 552a(g) provides for civil remedies if an agency fails
to comply with the requirements concerning access to records under
subsections (d)(1) and (3) of the Act; maintenance of records under
subsection (e)(5) of the Act; and any other provision of the Act, or any
rule promulgated thereunder, in such a way as to have an adverse effect
on an individual. Since this system of records would be exempt from
subsections (c)(3) and (4), (d), (e)(1), (2), and (3) and (4)(G) through
(I), (e)(5), and (8), and (f) of the Act, the provisions of subsection
(g) of the Act would be inapplicable to the extent that this system of
records will be exempted from those subsections of the Act.
(p) Pursuant to 5 U.S.C. 552a(k)(2), the system of records
maintained by the NLRB containing Agency Disciplinary Case Files
(Nonemployees) shall be exempted from the provisions of 5 U.S.C. 552a
(c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) insofar as the
system contains investigatory material compiled for law enforcement
purposes other than material within the scope of 5 U.S.C. 552a(j)(2).
(q) The Privacy Act exemption set forth in paragraph (p) of this
section is claimed on the ground that the requirements of subsections
(c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) of the Privacy
Act, if applied to Agency Disciplinary Case Files, would seriously
impair the ability of the NLRB to conduct investigations of alleged or
suspected violations of the NLRB's misconduct rules, as set forth in
paragraphs (o) (1), (3), (4), (7), (8), and (11) of this section.
[40 FR 7290, Feb. 19, 1975, as amended at 53 FR 10872, Apr. 4, 1988; 58
FR 42235, Aug. 9, 1993; 60 FR 32587, June 23, 1995; 61 FR 13765, Mar.
28, 1996; 61 FR 65183, Dec. 11, 1996; 66 FR 50311, Oct. 3, 2001]
Sec. 102.118 Present and former Board employees prohibited from producing files,
records, etc., pursuant to subpoena ad testificandum or subpoena duces tecum; prohibited
from testifying in regard thereto; production of witnesses' statements after direct testimony.
(a)(1) Except as provided in Sec. 102.117 of these rules respecting
requests cognizable under the Freedom of Information Act, no present or
former Regional Director, field examiner, administrative law judge,
attorney, specially designated agent, General Counsel, Member of the
Board, or other officer or employee of the Agency shall produce or
present any files, documents, reports, memoranda, or records of the
Board or of the General Counsel, whether in response to a subpoena duces
tecum or otherwise, without the written consent of the Board or the
Chairman of the Board if the document is in Washington, DC, and in
control of the Board; or of the General Counsel if the document is in a
Regional Office of the Agency or is in Washington, DC, and in the
control of the General Counsel. Nor shall any such person testify in
behalf of any party to any cause pending in any court or before the
Board, or any other board, commission, or other administrative agency of
the United States, or of any State, territory, or the District of
Columbia, or any subdivisions thereof, with respect to any information,
facts, or other matter coming to that person's knowledge in
[[Page 96]]
his or her official capacity or with respect to the contents of any
files, documents, reports, memoranda, or records of the Board or the
General Counsel, whether in answer to a subpoena or otherwise, without
the written consent of the Board or the Chairman of the Board if the
person is in Washington, DC, and subject to the supervision or control
of the Board or was subject to such supervision or control when formerly
employed at the Agency; or of the General Counsel if the person is in a
Regional Office of the Agency or is in Washington, DC, and subject to
the supervision or control of the General Counsel or was subject to such
supervision or control when formerly employed at the Agency. A request
that such consent be granted shall be in writing and shall identify the
documents to be produced, or the person whose testimony is desired, the
nature of the pending proceeding, and the purpose to be served by the
production of the document or the testimony of the official. Whenever
any subpoena ad testificandum or subpoena duces tecum, the purpose of
which is to adduce testimony or require the production of records as
described hereinabove, shall have been served on any such person or
otherwise expressly directed by the Board or the Chairman of the Board
or the General Counsel, as the case may be, move pursuant to the
applicable procedure, whether by petition to revoke, motion to quash, or
other officer or employee of the Board, that person will, unless
otherwise, to have such subpoena invalidated on the ground that the
evidence sought is privileged against disclosure by this rule.
(2) No regional director, field examiner, administrative law judge,
attorney, specially designated agent, general counsel, member of the
Board, or other officer or employee of the Board shall, by any means of
communication to any person or to another agency, disclose personal
information about an individual from a record in a system of records
maintained by this agency, as more fully described in the notices of
systems of records published by this agency in accordance with the
provisions of section (e)(4) of the Privacy Act of 1974, 5 U.S.C.
552a(e)(4), or by the Notices of Government-wide Systems of Personnel
Records published by the Civil Service Commission in accordance with
those statutory provisions, except pursuant to a written request by, or
with the prior written consent of, the individual to whom the record
pertains, unless disclosure of the record would be in accordance with
the provisions of section (b) (1) through (11), both inclusive, of the
Privacy Act of 1974, 5 U.S.C. 552a(b) (1) through (11).
(b)(1) Notwithstanding the prohibitions of paragraph (a) of this
section, after a witness called by the general counsel or by the
charging party has testified in a hearing upon a complaint under section
10(c) of the act, the administrative law judge shall, upon motion of the
respondent, order the production of any statement (as hereinafter
defined) of such witness in the possession of the general counsel which
relates to the subject matter as to which the witness has testified. If
the entire contents of any such statement relate to the subject matter
of the testimony of the witness, the administrative law judge shall
order it to be delivered directly to the respondent for his examination
and use for the purpose of cross-examination.
(2) If the general counsel claims that any statement ordered to be
produced under this section contains matter which does not relate to the
subject matter of the testimony of the witness, the administrative law
judge shall order the general counsel to deliver such statement for the
inspection of the administrative law judge in camera. Upon such delivery
the administrative law judge shall excise the portions of such statement
which do not relate to the subject matter of the testimony of the
witness except that he may, in his discretion, decline to excise
portions which, although not relating to the subject matter of the
testimony of the witness, do relate to other matters raised by the
pleadings. With such material excised the administrative law judge shall
then direct delivery of such statement to the respondent for his use on
cross-examination. If, pursuant to such procedure, any portion of such
statement is withheld from the respondent and the respondent objects to
such withholdings, the entire text of
[[Page 97]]
such statement shall be preserved by the general counsel, and, in the
event the respondent files exceptions with the Board based upon such
withholding, shall be made available to the Board for the purpose of
determining the correctness of the ruling of the administrative law
judge. If the general counsel elects not to comply with an order of the
administrative law judge directing delivery to the respondent of any
such statement, or such portion thereof as the administrative law judge
may direct, the administrative law judge shall strike from the record
the testimony of the witness.
(c) The provisions of paragraph (b) of this section shall also apply
after any witness has testified in any postelection hearing pursuant to
Sec. 102.69(d) and any party has moved for the production of any
statement (as hereinafter defined) of such witness in possession of any
agent of the Board which relates to the subject matter as to which the
witness has testified. The authority exercised by the administrative law
judge under paragraph (b) of this section shall be exercised by the
hearing officer presiding.
(d) The term statement as used in paragraphs (b) and (c) of this
section means:
(1) A written statement made by said witness and signed or otherwise
adopted or approved by him; or
(2) A stenographic, mechanical, electrical, or other recording, or a
transcription thereof, which is a substantially verbatim recital of an
oral statement made by said witness to an agent of the party obligated
to produce the statement and recorded contemporaneously with the making
of such oral statement.
[33 FR 9819, July 9, 1968, as amended at 35 FR 10658, July 1, 1970; 40
FR 7291, Feb. 19, 1975; 40 FR 50662, Oct. 30, 1975; 52 FR 27990, July
27, 1987]
Subpart L_Post-employment Restrictions on Activities by Former Officers
and Employees
Sec. 102.119 Post-employee restrictions on activities by former Officers
and employees.
Former officers and employees of the Agency who were attached to any
of its regional offices or the Washington staff are subject to the
applicable post-employment restrictions imposed by 18 U.S.C. 207.
Guidance concerning those restrictions may be obtained from the
Designated Agency Ethics Officer and any applicable regulations issued
by the Office of Government Ethics.
[62 FR 58907, Oct. 31, 1997]
Subpart M_Construction of Rules
Sec. 102.121 Rules to be liberally construed.
The rules and regulations in this part shall be liberally construed
to effectuate the purposes and provisions of the act.
Subpart N_Enforcement of Rights, Privileges, and Immunities Granted or
Guaranteed Under Section 222(f), Communications Act of 1934, as Amended,
to Employees of Merged Telegraph Carriers
Sec. 102.122 Enforcement.
All matters relating to the enforcement of rights, privileges, or
immunities granted or guaranteed under section 222(f) of the
Communications Act of 1934, as amended, shall be governed by the
provisions of subparts A, B, I, J, K, and M of this part, insofar as
applicable, except that reference in subpart B of this part to ``unfair
labor practices'' or ``unfair labor practices affecting commerce'' shall
for the purposes of this article mean the denial of any rights,
privileges, or immunities granted or guaranteed under section 222(f) of
the Communications Act of 1934, as amended.
[[Page 98]]
Sec. 102.123 Amendment or rescission of rules.
Any rule or regulation may be amended or rescinded by the Board at
any time.
Subpart O_Amendments
Sec. 102.124 Petitions for issuance, amendment, or repeal of rules.
Any interested person may petition the Board, in writing, for the
issuance, amendment, or repeal of a rule or regulation. An original and
seven copies of such petition shall be filed with the Board in
Washington, DC, and shall state the rule or regulation proposed to be
issued, amended, or repealed, together with a statement of grounds in
support of such petition.
[29 FR 15922, Nov. 28, 1964]
Sec. 102.125 Action on petition.
Upon the filing of such petition, the Board shall consider the same
and may thereupon either grant or deny the petition in whole or in part,
conduct an appropriate hearing thereon, or make other disposition of the
petition. Should the petition be denied in whole or in part, prompt
notice shall be given of the denial, accompanied by a simple statement
of the grounds unless the denial is self-explanatory.
Subpart P_Ex Parte Communications
Authority: Sec. 6, National Labor Relations Act, as amended (49
Stat. 452; 29 U.S.C. 156).
Source: 42 FR 13113, Mar. 8, 1977, unless otherwise noted.
Sec. 102.126 Unauthorized communications.
(a) No interested person outside this agency shall, in an on-the-
record proceeding of the types defined in Sec. 102.128, make or
knowingly cause to be made any prohibited ex parte communication to
Board agents of the categories designated in that section relevant to
the merits of the proceeding.
(b) No Board agent of the categories defined in Sec. 102.128,
participating in a particular proceeding as defined in that section,
shall (i) request any prohibited ex parte communications; or (ii) make
or knowingly cause to be made any prohibited ex parte communications
about the proceeding to any interested person outside this agency
relevant to the merits of the proceeding.
Sec. 102.127 Definitions.
When used in this subpart:
(a) The term person outside this agency, to whom the prohibitions
apply, shall include any individual outside this agency, partnership,
corporation, association, or other entity, or an agent thereof, and the
general counsel or his representative when prosecuting an unfair labor
practice proceeding before the Board pursuant to section 10(b) of the
Act.
(b) The term ex parte communication means an oral or written
communication not on the public record with respect to which reasonable
prior notice to all parties is not given, subject however, to the
provisions of Sec. Sec. 102.129 and 102.130.
Sec. 102.128 Types of on-the-record proceedings; categories of Board
agents; and duration of prohibition.
Unless otherwise provided by specific order of the Board entered in
the proceeding, the prohibition of Sec. 102.126 shall be applicable in
the following types of on-the-record proceedings to unauthorized ex
parte communications made to the designated categories of Board agents
who participate in the decision, from the stage of the proceeding
specified until the issues are finally resolved by the Board for the
purposes of that proceeding under prevailing rules and practices:
(a) In a preelection proceeding pursuant to section 9(c)(1) or 9(e),
or in a unit clarification or certification amendment proceeding
pursuant to section 9(b) of the Act, in which a formal hearing is held,
communications to the regional director and members of his staff who
review the record and prepare a draft of his decision, and members of
the Board and their legal assistants, from the time the hearing is
opened.
(b) In a postelection proceeding pursuant to section 9(c)(1) or 9(e)
of the Act, in which a formal hearing is held, communications to the
hearing officer,
[[Page 99]]
the regional director and members of his staff who review the record and
prepare a draft of his report or decision, and members of the Board and
their legal assistants, from the time the hearing is opened.
(c) In a postelection proceeding pursuant to section (c)(1) or 9(e),
or in a unit clarification or certification amendment proceeding
pursuant to section 9(b) of the Act, in which no formal hearing is held,
communications to members of the Board and their legal assistants, from
the time the regional director's report or decision is issued.
(d) In a proceeding pursuant to section 10(k) of the Act,
communications to members of the Board and their legal assistants, from
the time the hearing is opened.
(e) In an unfair labor practice proceeding pursuant to section 10(b)
of the Act, communications to the administrative law judge assigned to
hear the case or to make rulings upon any motions or issues therein and
members of the Board and their legal assistants, from the time the
complaint and/or notice of hearing is issued, or the time the
communicator has knowledge that a complaint or notice of hearing will be
issued, whichever occurs first.
(f) In any other proceeding to which the Board by specific order
makes the prohibition applicable, to the categories of personnel and
from the stage of the proceeding specified in the order.
Sec. 102.129 Communications prohibited.
Except as provided in Sec. 102.130, ex parte communications
prohibited by Sec. 102.126 shall include:
(a) Such communications, when written, if copies thereof are not
contemporaneously served by the communicator on all parties to the
proceeding in accordance with the provisions of Sec. 102.114(a).
(b) Such communications, when oral, unless advance notice thereof is
given by the communicator to all parties in the proceeding and adequate
opportunity afforded to them to be present.
[42 FR 13113, Mar. 8, 1977, as amended at 51 FR 30636, Aug. 28, 1986; 51
FR 32919, Sept. 17, 1986]
Sec. 102.130 Communications not prohibited.
Ex parte communications prohibited by Sec. 102.126 shall not
include:
(a) Oral or written communications which relate solely to matters
which the hearing officer, regional director, administrative law judge,
or member of the Board is authorized by law or Board rules to entertain
or dispose of on an ex parte basis.
(b) Oral or written requests for information solely with respect to
the status of a proceeding.
(c) Oral or written communications which all the parties to the
proceeding agree, or which the responsible official formally rules, may
be made on an ex parte basis.
(d) Oral or written communications proposing settlement or an
agreement for disposition of any or all issues in the proceeding.
(e) Oral or written communications which concern matters of general
significance to the field of labor-management relations or
administrative practice and which are not specifically related to
pending on-the-record proceedings.
(f) Oral or written communications from the general counsel to the
Board when the general counsel is acting as counsel for the Board.
Sec. 102.131 Solicitation of prohibited communications.
No person shall knowingly and willfully solicit the making of an
unauthorized ex parte communication by any other person.
Sec. 102.132 Reporting of prohibited communications; penalties.
(a) Any Board agent of the categories defined in Sec. 102.128 to
whom a prohibited oral ex parte communication is attempted to be made
shall refuse to listen to the communication, inform the communicator of
this rule, and advise him that if he has anything to say it should be
said in writing with copies to all parties. Any such Board agent who
receives, or who makes or knowingly causes to be made, an unauthorized
ex parte communication shall place or cause to be placed on the public
record of the proceeding:
[[Page 100]]
(1) The communication, if it was written,
(2) A memorandum stating the substance of the communication, if it
was oral,
(3) All written responses to the prohibited communication, and
(4) Memoranda stating the substance of all oral responses to the
prohibited communication.
(b) The executive secretary, if the proceeding is then pending
before the Board, the administrative law judge, if the proceeding is
then pending before any such judge, or the regional director, if the
proceeding is then pending before a hearing officer or the regional
director, shall serve copies of all such materials placed on the public
record of the proceeding on all other parties to the proceeding and on
the attorneys of record for the parties. Within 14 days after the
mailing of such copies, any party may file with the executive secretary,
administrative law judge, or regional director serving the
communication, and serve on all other parties, a statement setting forth
facts or contentions to rebut those contained in the prohibited
communication. All such responses shall be placed in the public record
of the proceeding, and provision may be made for any further action,
including reopening of the record which may be required under the
circumstances. No action taken pursuant to this provision shall
constitute a waiver of the power of the Board to impose an appropriate
penalty under Sec. 102.133.
[51 FR 32919, Sept. 17, 1986]
Sec. 102.133 Penalties and enforcement.
(a) Where the nature and circumstances of a prohibited communication
made by or caused to be made by a party to the proceeding are such that
the interests of justice and statutory policy may require remedial
action, the Board, administrative law judge, or regional director, as
the case may be, may issue to the party making the communication a
notice to show cause, returnable before the Board within a stated period
not less than 7 days from the date thereof, why the Board should not
determine that the interests of justice and statutory policy require
that the claim or interest in the proceeding of a party who knowingly
makes a prohibited communication or knowingly causes a prohibited
communication to be made, should be dismissed, denied, disregarded or
otherwise adversely affected on account of such violation.
(b) Upon notice and hearing, the Board may censure, suspend, or
revoke the privilege of practice before the agency of any person who
knowingly and willfully makes or solicits the making of a prohibited ex
parte communication. However, before the Board institutes formal
proceedings under this subsection, it shall first advise the person or
persons concerned in writing that it proposes to take such action and
that they may show cause, within a period to be stated in such written
advice, but not less than 7 days from the date thereof, why it should be
take such action.
(c) The Board may censure, or, to the extent permitted by law,
suspend, dismiss, or institute proceedings for the dismissal of, any
Board agent who knowingly and willfully violates the prohibitions and
requirements of this rule.
[42 FR 15410, Mar. 22, 1977]
Subpart Q_Procedure Governing Matters Affecting Employment-Management
Agreements Under the Postal Reorganization Act
Sec. 102.135 Employment-management agreements.
(a) Employment-management agreements. All matters within the
jurisdiction of the National Labor Relations Board pursuant to the
Postal Reorganization Act (chapter 12 of title 39, U.S. Code, as
revised) shall be governed by the provisions of subparts A, B, C, D, F,
G, I, J, K, L, M, O, and P of the rules and regulations insofar as
applicable.
(b) Inconsistencies. To the extent that any provision of this
subpart Q is inconsistent with any provision of title 39, United States
Code, the provision of said title 39 shall govern.
(c) Exceptions. For the purposes of this subpart, references in the
subparts of the rules and regulations cited above
[[Page 101]]
to (1) employer shall be deemed to include the Postal Service, (2) Act
shall in the appropriate context mean ``Postal Reorganization Act,'' (3)
section 9(c) of the Act and cited paragraphs thereof shall mean ``39
U.S.C. secs. 1203(c) and 1204,'' and (4) section 9(b) of the Act shall
mean ``39 U.S.C. sec. 1202.''
[36 FR 12532, July 1, 1971]
Subpart R_Advisory Committees
Sec. 102.136 Establishment and utilization of advisory committees.
Advisory committees may from time to time be established or utilized
by the agency in the interest of obtaining advice or recommendations on
issues of concern to the agency. The establishment, utilization, and
functioning of such committees shall be in accordance with the
provisions of the Federal Advisory Committee Act, 5 U.S.C. app. I,
sections 1-15, and Office of Management and Budget Circular A-63 (rev.
March 27, 1975), Advisory Committee Management Guidance, 39 FR 12389-
12391, to the extent applicable.
(49 Stat. 449 (29 U.S.C. 151-166, as amended by Act of June 23, 1947) 61
Stat. 136 (29 U.S.C. Supp. 151-167), act of October 22, 1951, 65 Stat.
601 (29 U.S.C. 158, 159, 168), and Act of September 14, 1959 73 Stat.
519; 29 U.S.C. 141-168); 86 Stat. 770; (5 U.S.C. Appendix I, section 1
et seq.))
[40 FR 59728, Dec. 30, 1975]
Subpart S_Open Meetings
Authority: Sec. 6, National Labor Relations Act, as amended (49
Stat. 452; 29 U.S.C. 156) and sec. 3(a), Government in the Sunshine Act,
Pub. L. 94-409, Sept. 13, 1976, 5 U.S.C. 552b(g).
Source: 42 FR 13550, Mar. 11, 1977, unless otherwise noted.
Sec. 102.137 Public observation of Board meetings.
Every portion of every meeting of the Board shall be open to public
observation, except as provided in Sec. 102.139 of these rules, and
Board members shall not jointly conduct or dispose of agency business
other than in accordance with the provisions of this subpart.
Sec. 102.138 Definition of meeting.
For purposes of this subpart, meeting shall mean the deliberations
of at least three members of the full Board, or the deliberations of at
least two members of any group of three Board members to whom the Board
has delegated powers which it may itself exercise, where such
deliberations determine or result in the joint conduct or disposition of
official agency business, but does not include deliberations to
determine whether a meeting should be closed to public observation in
accordance with the provisions of this subpart.
Sec. 102.139 Closing of meetings; reasons therefor.
(a) Except where the Board determines that the public interest
requires otherwise, meetings, or portions thereof, shall not be open to
public observation where the deliberations concern the issuance of a
subpoena, the Board's participation in a civil action or proceeding or
an arbitration, or the initiation, conduct or disposition by the Board
of particular representation or unfair labor practice proceedings under
sections 8, 9, or 10 of the Act, or any court proceedings collateral or
ancillary thereto.
(b) Meetings, or portions thereof, may also be closed by the Board,
except where it determines that the public interest requires otherwise,
when the deliberations concern matters or information falling within the
reasons for closing meetings specified in 5 U.S.C. 552b(c)(1) (secret
matters concerning national defense or foreign policy); (c)(2) (internal
personnel rules and practices); (c)(3) (matters specifically exempted
from disclosure by statute); (c)(4) (privileged or confidential trade
secrets and commercial or financial information); (c)(5) (matters of
alleged criminal conduct or formal censure); (c)(6) (personal
information where disclosure would cause a clearly unwarranted invasion
of personal privacy); (c)(7) (certain materials or information from
investigatory files compiled for law enforcement purposes); or (c)(9)(B)
(disclosure would significantly frustrate implementation of a proposed
agency action).
[[Page 102]]
Sec. 102.140 Action necessary to close meetings; record of votes.
A meeting shall be closed to public observation under Sec. 102.139,
only when a majority of the members of the Board who will participate in
the meeting vote to take such action.
(a) When the meeting deliberations concern matters specified in
Sec. 102.139(a), the Board members shall vote at the beginning of the
meeting, or portion thereof, on whether to close such meeting, or
portion thereof, to public observation, and on whether the public
interest requires that a meeting which may properly be closed should
nevertheless be open to public observation. A record of such vote,
reflecting the vote of each member of the Board, shall be kept and made
available to the public at the earliest practicable time.
(b) When the meeting deliberations concern matters specified in
Sec. 102.139(b), the Board shall vote on whether to close such meeting,
or portion thereof, to public observation, and on whether there is a
public interest which requires that a meeting which may properly be
closed should nevertheless be open to public observation. The vote shall
be taken at a time sufficient to permit inclusion of information
concerning the open or closed status of the meeting in the public
announcement thereof. A single vote may be taken with respect to a
series of meetings at which the deliberations will concern the same
particular matters where such subsequent meetings are scheduled to be
held within thirty days after the initial meeting. A record of such
vote, reflecting the vote of each member of the Board, shall be kept and
made available to the public within one day after the vote is taken.
(c) Whenever any person whose interests may be directly affected by
deliberations during a meeting, or a portion thereof, requests that the
Board close that meeting, or portion thereof, to public observation for
any of the reasons specified in 5 U.S.C. 552b(c)(5) (matters of alleged
criminal conduct or formal censure), (c)(6) (personal information where
disclosure would cause a clearly unwarranted invasion of personal
privacy), or (c)(7) (certain materials or information from investigatory
files compiled for law enforcement purposes), the Board members
participating in the meeting, upon request of any one of its members,
shall vote on whether to close such meeting, or a portion thereof, for
that reason. A record of such vote, reflecting the vote of each member
of the Board participating in the meeting shall be kept and made
available to the public within one day after the vote is taken.
(d) After public announcement of a meeting as provided in Sec.
102.141 of this part, a meeting, or portion thereof, announced as closed
may be opened, or a meeting, or portion thereof, announced as open may
be closed, only if a majority of the members of the Board who will
participate in the meeting determine by a recorded vote that Board
business so requires and that an earlier announcement of the change was
not possible. The change made and the vote of each member on the change
shall be announced publicly at the earliest practicable time.
(e) Before a meeting may be closed pursuant to Sec. 102.139, the
solicitor of the Board shall certify that in his or her opinion the
meeting may properly be closed to public observation. The certification
shall set forth each applicable exemptive provision for such closing.
Such certification shall be retained by the agency and made publicly
available as soon as practicable.
Sec. 102.141 Notice of meetings; public announcement and publication.
(a) A public announcement setting forth the time, place and subject
matter of meetings or portions thereof closed to public observation
pursuant to the provisions of Sec. 102.139(a) of this part, shall be
made at the earliest practicable time.
(b) Except for meetings closed to public observation pursuant to the
provisions of Sec. 102.139(a) of this part, the agency shall make
public announcement of each meeting to be held at least 7 days before
the scheduled date of the meeting. The announcement shall specify the
time, place and subject matter of the meeting, whether it is to be open
to public observation or closed, and the name, address, and phone number
of an agency official designated to respond to requests for information
about the meeting. The 7
[[Page 103]]
day period for advance notice may be shortened only upon a determination
by a majority of the members of the Board who will participate in the
meeting that agency business requires that such meeting be called at an
earlier date, in which event the public announcements shall be made at
the earliest practicable time. A record of the vote to schedule a
meeting at an earlier date shall be kept and made available to the
public.
(c) Within one day after a vote to close a meeting, or any portion
thereof, pursuant to the provisions of Sec. 102.139(b) of this part,
the agency shall make publicly available a full written explanation of
its action closing the meeting, or portion thereof, together with a list
of all persons expected to attend the meeting and their affiliation.
(d) If after public announcement required by paragraph (b) of this
section has been made, the time and place of the meeting are changed, a
public announcement shall be made at the earliest practicable time. The
subject matter of the meeting may be changed after the public
announcement only if a majority of the members of the Board who will
participate in the meeting determine that agency business so requires
and that no earlier announcement of the change was possible. When such a
change in subject matter is approved a public announcement of the change
shall be made at the earliest practicable time. A record of the vote to
change the subject matter of the meeting shall be kept and made
available to the public.
(e) All announcements or changes thereto issued pursuant to the
provisions of paragraphs (b) and (d) of this section, or pursuant to the
provisions of Sec. 102.140(d), shall be submitted for publication in
the Federal Register immediately following their release to the public.
(f) Announcements of meetings made pursuant to the provisions of
this section shall be made publicly available by the executive
secretary.
Sec. 102.142 Transcripts, recordings or minutes of closed meetings;
public availability; retention.
(a) For every meeting or portion thereof closed under the provisions
of Sec. 102.139 of this part, the presiding officer shall prepare a
statement setting forth the time and place of the meeting and the
persons present, which statement shall be retained by the agency. For
each such meeting or portion thereof there shall also be maintained a
complete transcript or electronic recording of the proceedings, except
that for meetings closed pursuant to Sec. 102.139(a) the Board may, in
lieu of a transcript or electronic recording, maintain a set of minutes
fully and accurately summarizing any action taken, the reasons thereof
and views thereon, documents considered, and the members' vote on each
roll call vote.
(b) The agency shall make promptly available to the public copies of
transcripts, recordings or minutes maintained as provided in accordance
with paragraph (a) of this section, except to the extent the items
therein contain information which the agency determines may be withheld
pursuant to the provisions of 5 U.S.C. 552(c). Copies of transcripts or
minutes, or transcriptions of electronic recordings including the
identification of speakers, shall to the extent determined to be
publicly available, be furnished to any person, subject to the payment
of duplication costs in accordance with the schedule of fees set forth
in Sec. 102.117(c)(2)(iv), and the actual cost of transcription.
(c) The agency shall maintain a complete verbatim copy of the
transcript, a complete electronic recording, or a complete set of the
minutes for each meeting or portion thereof closed to the public, for a
period of at least one year after the close of the agency proceeding of
which the meeting was a part, but in no event for a period of less than
two years after such meeting.
Subpart T_Awards of Fees and Other Expenses
Authority: Equal Access to Justice Act, Pub. L. 96-481, 94 Stat.
2325.
[[Page 104]]
Source: 46 FR 48087, Sept. 30, 1981, unless otherwise noted.
Sec. 102.143 ``Adversary adjudication'' defined; entitlement to award;
eligibility for award.
(a) The term adversary adjudication, as used in this subpart, means
unfair labor practice proceedings pending before the Board on complaint
and backpay proceedings under Sec. Sec. 102.52 to 102.59 of these rules
pending before the Board on notice of hearing at any time after October
1, 1984.
(b) A respondent in an adversary adjudication who prevails in that
proceeding, or in a significant and discrete substantive portion of that
proceeding, and who otherwise meets the eligibility requirements of this
section, is eligible to apply for an award of fees and other expenses
allowable under the provisions of Sec. 102.145 of these rules.
(c) Applicants eligible to receive an award are as follows:
(1) An individual with a net worth of not more than $2 million;
(2) The sole owner of an unincorporated business who has a net worth
of not more than $7 million, including both personal and business
interests, and not more than 500 employees;
(3) A charitable or other tax-exempt organization described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500
employees; and
(5) Any other partnership, corporation, association, unit of local
government, or public or private organization with a net worth of not
more than $7 million and not more than 500 employees.
(d) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date of the
complaint in an unfair labor practice proceeding or the date of the
notice of hearing in a backpay proceeding.
(e) An applicant who owns an unincorporated business will be
considered as an ``individual'' rather than a ``sole owner of
unincorporated business'' if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interests.
(f) The employees of an applicant include all persons who regularly
perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be included
on a proportional basis.
(g) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual, corporation or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant, or any corporation or other entity of which the applicant
directly or indirectly owns or controls a majority of the voting shares
or other interest, will be considered an affiliate for purposes of this
part, unless such treatment would be unjust and contrary to the purposes
of the Equal Access to Justice Act (94 Stat. 2325) in light of the
actual relationship between the affiliated entities. In addition
financial relationships of the applicant other than those described in
this paragraph may constitute special circumstances that would make an
award unjust.
(h) An applicant that participates in an adversary adjudication
primarily on behalf of one or more other persons or entities that would
be ineligible is not itself eligible for an award.
[46 FR 48087, Sept. 30, 1981, as amended at 51 FR 17733, May 15, 1986;
51 FR 36224, Oct. 9, 1986]
Sec. 102.144 Standards for awards.
(a) An eligible applicant may receive an award for fees and expenses
incurred in connection with an adversary adjudication or in connection
with a significant and discrete substantive portion of that proceeding,
unless the position of the General Counsel over which the applicant has
prevailed was substantially justified. The burden of proof that an award
should not be made to an eligible applicant is on the General Counsel,
who may avoid an award by showing that the General Counsel's position in
the proceeding was substantially justified.
[[Page 105]]
(b) An award will be reduced or denied if the applicant has unduly
or unreasonably protracted the adversary adjudication or if special
circumstances make the award sought unjust.
[46 FR 48087, Sept. 30, 1981, as amended at 51 FR 17733, May 15, 1986]
Sec. 102.145 Allowable fees and expenses.
(a) Awards will be based on rates customarily charged by persons
engaged in the business of acting as attorneys, agents and expert
witnesses, even if the services were made available without charge or at
a reduced rate to the applicant.
(b) No award for the attorney or agent fees under these rules may
exceed $75.00 per hour. However, an award may also include the
reasonable expenses of the attorney, agent, or witness as a separate
item, if the attorney, agent or expert witness ordinarily charges
clients separately for such expenses.
(c) In determining the reasonableness of the fee sought for an
attorney, agent or expert witness, the following matters shall be
considered:
(1) If the attorney, agent or expert witness is in practice, his or
her customary fee for similar services, or, if an employee of the
applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in
which the attorney, agent or expert witness ordinarily performs
services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or
complexity of the issues in the adversary adjudicative proceeding; and
(d) The reasonable cost of any study, analysis, engineering report,
test, project or similar matter prepared on behalf of an applicant may
be awarded, to the extent that the charge for the service does not
exceed the prevailing rate for similar services, and the study or other
matter was necessary for preparation of the applicant's case.
Sec. 102.146 Rulemaking on maximum rates for attorney or agent fees.
Any person may file with the Board a petition under Sec. 102.124 of
these rules for rulemaking to increase the maximum rate for attorney or
agent fees. The petition should specify the rate the petitioner believes
should be established and explain fully why the higher rate is warranted
by an increase in the cost of living or a special factor (such as the
limited availability of qualified attorneys or agents for the
proceedings involved).
Sec. 102.147 Contents of application; net worth exhibit; documentation
of fees and expenses.
(a) An application for an award of fees and expenses under the Act
shall identify the applicant and the adversary adjudication for which an
award is sought. The application shall state the particulars in which
the applicant has prevailed and identify the positions of the General
Counsel in that proceeding that the applicant alleges were not
substantially justified. Unless the applicant is an individual, the
application shall also state the number, category, and work location of
employees of the applicant and its affiliates and describe briefly the
type and purpose of its organization or business.
(b) The application shall include a statement that the applicant's
net worth does not exceed $2 million (if an individual) or $7 million
(for all other applicants, including their affiliates). However, an
applicant may omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service
that it qualifies as an organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a
tax-exempt organization not required to obtain a ruling from the
Internal Revenue Service on its exempt status, a statement that
describes the basis for the applicant's belief that it qualifies under
such section; or
(2) It states that it is a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(c) The application shall state the amount of fees and expenses for
which an award is sought.
(d) The application may also include any other matters that the
applicant
[[Page 106]]
wishes this Agency to consider in determining whether and in what amount
an award should be made.
(e) The application shall be signed by the applicant or an
authorized officer or attorney of the applicant. It shall also contain
or be accompanied by a written verification under oath or under penalty
of perjury that the information provided in the application is true.
(f) Each applicant, except a qualified tax-exempt organization or
cooperative association, must provide with its application a detailed
exhibit showing the net worth of the applicant and any affiliates (as
defined in Sec. 102.143(g)) when the adversary adjudicative proceeding
was initiated. The exhibit may be in any form convenient to the
applicant that provides full disclosure of the applicant's and its
affiliates' assets and liabilities and is sufficient to determine
whether the applicant qualifies under the standards in this part. The
administrative law judge may require an applicant to file such
additional information as may be required to determine its eligibility
for an award.
(g)(1) Unless otherwise directed by the administrative law judge,
the net worth exhibit will be included in the public record of the fee
application proceeding. An applicant that objects to public disclosure
of information in any portion of the exhibit may submit that portion of
the exhibit in a sealed envelope labeled ``Confidential Financial
Information'', accompanied by a motion to withhold the information from
public disclosure. The motion shall describe the information sought to
be withheld and explain, in detail, why public disclosure of the
information would adversely affect the applicant and why disclosure is
not required in the public interest. The exhibit shall be served on the
General Counsel but need not be served on any other party to the
proceeding. If the administrative law judge finds that the information
should not be withheld from disclosure, it shall be placed in the public
record of the proceeding.
(2) If the administrative law judge grants the motion to withhold
from public disclosure, the exhibit shall remain sealed, except to the
extent that its contents are required to be disclosed at a hearing. The
granting of the motion to withhold from public disclosure shall not be
determinative of the availability of the document under the Freedom of
Information Act in response to a request made under the provisions of
Sec. 102.117. Notwithstanding that the exhibit may be withheld from
public disclosure, the General Counsel may disclose information from the
exhibit to others if required in the course of an investigation to
verify the claim of eligibility.
(h) The application shall be accompanied by full documentation of
the fees and expenses for which an award is sought. A separate itemized
statement shall be submitted for each professional firm or individual
whose services are covered by the application, showing the dates and the
hours spent in connection with the proceeding by each individual, a
description of the specific services performed, the rate at which each
fee has been computed, any expenses for which reimbursement is sought,
the total amount claimed, and the total amount paid or payable by the
applicant or by any other person or entity for the services provided.
The administrative law judge may require the applicant to provide
vouchers, receipts, or other substantiation for any expenses claimed.
[46 FR 48087, Sept. 30, 1981, as amended at 51 FR 17733, May 15, 1986;
51 FR 36224, Oct. 9, 1986]